Guarantor liability - how to proceed?

GoToGal

Some years ago, I signed a guarantor form for a tenancy. I received a letter today advising I am liable for a sum which represents a year's worth of rent and an additional sum for damages to the property.

I'm now looking for the original form which I should have filed in storage but any advice on this would be appreciated.

I have contacted the tenant and they have agreed to pay the arrears off so this is just a preventative measure and clarifying my position.

Questions:
1. I want to make sure the arrears amount is correct, the tenant states it should be half that. How do I verify this?

2. The sum for damages has been quoted as "in the region of", shouldn't they give me an actual amount?

3. Can I insist they keep open dialogue with me regarding the situation so I don't get another surprise letter or summons to court?

4. I spoke to someone in the office this morning and she can't give me details of 1 or 2 or agree to 3 without the tenant's express permission due to data protection, even though I'm liable. Is she giving me the flim flam flannel?

5. Is there any action I should be taking now to keep a handle on the situation or is there anywhere I can go for more in-depth information?

I'm happy to consult a lawyer if needs be but would like to get myself informed, keep an eye on the situation and only resort to a lawyer if things start going pear shaped.

Thanks for reading, apologies for the length!

Yorkie1

I seem to recall someone previously posting on here that a guarantor agreement needed to be signed as a deed to be enforceable. Hopefully someone will be along to confirm whether this is something you need to look into first - and if you can indeed find your copy of the document you signed.

I certainly would not pay up on the strength of an unevidenced letter. I'd want to see a payment schedule - when rent was due and what rent was paid / when it was paid. I'd also check that with the tenant, ask them if they have a record of what they paid and when (bank statements?) - to help assess if the rent claim is correct.

Is the tenancy ongoing or ended? I don't know whether the LL can seek damages during the tenancy, if the tenancy is still continuing.

However in any event, I'd want to know the same things that a tenant should ask, i.e. was there an inventory at the start, was there a checkout inventory - can the LL prove that the damage wasn't there at the start of the tenancy? Then, what is the nature of the damage? Does the T agree with the alleged damage? The LL cannot claim for 'betterment' - e.g. damage to a sofa which was several years old will be restricted to what a second hand sofa of that age would be worth, can't get new for old.

theartfullodger

As yorkie says..

Think I'd write a calm polite letter to the landlord thanking him for his letter and requesting copies of the guarantor agreement, rent account & damages listing.

Until you find out if the guarantee is enforceable (deed, signed, witnessed etc..,) there's no point doing anything else (unless you feel morally obliged to pay even if you perhaps don't need to..).

If they refuse to supply this info and quote "data protection" then I'd be very very very suspicious.. You could try forcing them to by stating you are aware that Data Protection Act Section 35 (think 35..) says data not protected if required as regards planned court proceedings
http://www.legislation.gov.uk/ukpga/1998/29/section/35

35 Disclosures required by law or made in connection with legal proceedings etc.

(1)Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2)Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—
(a)for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b)for the purpose of obtaining legal advice,or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Legal proceedings?? You could sue them for harassment...

Also, if they get heavy & difficult about trying to collect you have this to protect you...

Administration of Justice Act 1970
, s40, ref harassment of debtors
(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—
(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

PS This is England?? Don't think the deed restriction applies in Scotland

GoToGal

Thanks for the reply Yorkie1, it's a real help

The tenancy has ended and the property was unfurnished. I've been advised the damage includes painting, laminate replacement and carpet cleaning for which they are quoting "in the region of £600".

I'll forward the questions to the tenant and discuss with them tomorrow before they get back to the agency to accept the liability. I presume if they accept the liability, set up a payment plan and then default, I'm still liable? Or could I request the agency discharge my liability if they come to a payment arrangement? (I know this is unlikely to fly to be honest!)

I did note there also has been no mention of the deposit paid by the tenant which I presumed the damages would come out of. It was IIRC 1.5 times the monthly rental, so I'll ask about that too.

Cheers

ETA: Thanks ArtfulLodger, this is indeed England. Smashing idea to request copies, I'll send a recorded letter first thing on Monday. Might save me having to pop into my storage locker for heavy box lifting on a Saturday morning

jjlandlord

Regarding the damage, at the end of the tenancy the landlord should propose a set of deductions. If the tenant disagrees he should dispute the proposal including before the deposit scheme.
Only when this is settled should an amount be due in my view.

G_M

There are several inter-related issues here.

1) is the guarantor agreement valid? Yes, in England it must be signed as a 'Deed', with a witness, not just an agreement signed by you. You must also have been given a copy of the tenancy agreement to which it relates.

2) Is there an itemised breakdown of the claim. Clearly you cannot be expected to simply fork out a figure plucked from the air. So as said above, a schedule of rent payments paid/missed etc that you can verify with the tenant, detail of damage with contractor's quotes/invoices etc

3) Deposit - Has it been taken into account (and was it registered in a deposit scheme)

4) Does the tenant agree with the rent schedule and amount owing? If not, does he have proof of rent payments made (eg receipts, bank statement showing payment transfers etc)

5) Does the tenant admit to the damage or is it contested? Does the landlord have a check-in inventory signed by the tenant showing the condition of the property at the start of the tenancy, which can be used to compare with the condition at check-out? (ie if there's a claim for carpet cleaning, can they prove the carpet was clean when the tenant moved in?)

mustrum_ridcully

Ask them for a FULL breakdown of the costs, insist that details regarding apportionment (for redecoration / replacement) are provided. Quotes and receipts would be useful as well.

Apportionment basically means that only the lost usage of an item that is paid for. So if a the life of a carpet is 10 years (5 years old when tenants moved in), tenants live there for 4 years and carpet has to be replaced the most they could charge you for is 10% of the cost of an equivalent replacement (for the lost year of usage).

Have a read of the web page below:

http://www.arla.co.uk/information/deposit-protection/betterment-and-apportionment/