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Landlord taking small claims action one student not paying rent - Joint and several

an1179
Posts: 1,844 Forumite


5 bedroom house
5 students with 5 guarantors
Lease signed January 2012 lease from 2 September 2012 to 31 August 2013
Joint and several short-hold tenancy agreement
One student had difficulty getting grant and so did not take up residency. Room was advertised but no takers.
Letting agents informed other tenants and guarantors in February 2013 there was a problem.
We are aware of what joint and several means - although we were not supplied with a copy of lease by Letting agents when they sent guarantor forms and thought that we were only guarantor to our daughter.
All the other tenants are up-to-date with their rent
All ten parties have now had letter from Letting agents giving 7 days to settle outstanding amount in excess of £2500 or small claims action will be taken. This amount is the owed rent in respect of the one student (£85 per week)
In the court papers they have included a additional daily charge on top of the £2500+ for for the property rent from the period beginning of June to end of august 2013.
We have got legal protection with our household insurer Aviva and they said they specifically exclude representation for this type of problem
They have told us that we need to make a part 20 counter claim but that is all the advice they are willing to give.
Presumably we (4 tenants and 4 guarantors) have to do a joint small claims action against the other tenant and guarantor. Could really do without the stress of this as all sorts going on at the moment.
I cannot see that a solicitor would charge a reasonable fee to sort this out
5 students with 5 guarantors
Lease signed January 2012 lease from 2 September 2012 to 31 August 2013
Joint and several short-hold tenancy agreement
One student had difficulty getting grant and so did not take up residency. Room was advertised but no takers.
Letting agents informed other tenants and guarantors in February 2013 there was a problem.
We are aware of what joint and several means - although we were not supplied with a copy of lease by Letting agents when they sent guarantor forms and thought that we were only guarantor to our daughter.
All the other tenants are up-to-date with their rent
All ten parties have now had letter from Letting agents giving 7 days to settle outstanding amount in excess of £2500 or small claims action will be taken. This amount is the owed rent in respect of the one student (£85 per week)
In the court papers they have included a additional daily charge on top of the £2500+ for for the property rent from the period beginning of June to end of august 2013.
We have got legal protection with our household insurer Aviva and they said they specifically exclude representation for this type of problem
They have told us that we need to make a part 20 counter claim but that is all the advice they are willing to give.
Presumably we (4 tenants and 4 guarantors) have to do a joint small claims action against the other tenant and guarantor. Could really do without the stress of this as all sorts going on at the moment.
I cannot see that a solicitor would charge a reasonable fee to sort this out
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Comments
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All the other tenants are up-to-date with their rent
So there is no defence to the action for arrears.
The guarantors might be able to argue the guarantor agreements were invalid if
* they did not receive copies of the tenancy agreement they were guaranteeing
* the GA was not Executed as a Deed, and witnessed as such
But this would not stop the tenants being chased via the courts.
The tenants can, of course, take seperate action against the defaulting one. Goodluck with that though!
What is the 'additional daily charge'? If unreasonable, you could dispute this.
Best advice? Pay the arrears before the court case, ideally via an agreed negotiation (perhaps offering to pay asap if they deduct the daily charge/court expenses). otherwise court fees will also be added!
Chasing the missing tenant can be done seperately, if he can be found. And if he has funds.
I doubt his guarantor will be liable as the guarantee agreement was not between the other tenants and that guarantor.0 -
It may be worth checking that the house is properly registered as an HMO. If not it would give you some bargaining power.0
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It may be worth checking that the house is properly registered as an HMO. If not it would give you some bargaining power.
https://www.gov.uk/government/publications/licensing-of-houses-in-multiple-occupation-in-england-a-guide-for-tenants
HMOs only have to be licensed if they are on 3 or more floors (and meet additional criteria) or if the council involved have imposed additional licensing conditions.
Best to check that its required before wading in with size 9’s
The local council website will let you know what criteria they use for HMO’s.0 -
martinsurrey wrote: »https://www.gov.uk/government/publications/licensing-of-houses-in-multiple-occupation-in-england-a-guide-for-tenants
HMOs only have to be licensed if they are on 3 or more floors (and meet additional criteria) or if the council involved have imposed additional licensing conditions.
Best to check that its required before wading in with size 9’s
The local council website will let you know what criteria they use for HMO’s.
It is registered as HMO0 -
No they are not. They are responsible for full rent for the property. Not just for 'their share.'
So there is no defence to the action for arrears.
The guarantors might be able to argue the guarantor agreements were invalid if
* they did not receive copies of the tenancy agreement they were guaranteeing
* the GA was not Executed as a Deed, and witnessed as such
But this would not stop the tenants being chased via the courts.
The tenants can, of course, take seperate action against the defaulting one. Goodluck with that though!
What is the 'additional daily charge'? If unreasonable, you could dispute this.
Best advice? Pay the arrears before the court case, ideally via an agreed negotiation (perhaps offering to pay asap if they deduct the daily charge/court expenses). otherwise court fees will also be added!
Chasing the missing tenant can be done seperately, if he can be found. And if he has funds.
I doubt his guarantor will be liable as the guarantee agreement was not between the other tenants and that guarantor.
This is part of correspondence with letting agents
My Questions
Please clarify the following points
Who is the Landlord taking to court
The amount of rent outstanding
Why defaulting tenant was not advised by your agency in the first instance the procedure she should have taken to avoid this problem.
Why the leasehold agreements were not available for inspection by guarantors until after the agreements had been signed by all parties.
Their response
I can confirm that the court action is against everyone on the contract and the guarantors as it is a Joint & Several contract. The guarantors have signed for the responsibilities of the person they are guaranteeing. The rent amount outstanding is currently £2241.89 this debt is defaulting tenants. The debt will rise to £3736.49 with the remaining 4 months’ rent.
If tenants advise letting agents that they no longer want to live in the property we advise them to re – advertise the room. The tenant can ask letting agent to re-advertise on their behalf at a cost.
Tenants are contacted individually when they fall behind with rent payments. If they don’t respond to us or if the debt continues to rise we notify all parties involved that there is a problem.
We can issue a specimen copy at the point of sign up if the tenants ask for a copy.0 -
We are aware of what joint and several means - although we were not supplied with a copy of lease by Letting agents when they sent guarantor forms and thought that we were only guarantor to our daughter.
You are only guarantor for your daughter. The problem is that she is liable for the whole of the arrears, as is each of the other tenants (and their guarantors).
As someone else has said, you may be able to get the guarantee declared void if you did not receive a copy of the tenancy agreement, or if the guarantee agreement was not properly executed, but that does not absolve the individual tenants from their liabilities under the tenancy agreement.
If at all possible your daughter and her co-tenants need to find someone to take over the vacant room, this will at least stop the arrears from accruing.
If the missing tenant and his guarantor can be found, you may be able to have them joined to the court proceedings as co-defendants, but the fact is that the LL will enforce the CCJ against the easiest targets.
The situation sucks, but that is the nature of joint tenancy agreements and guarantor agreements. Also, remember that once the arrears amount to the equivalent of two months rent, the LL can serve them with notice and seek a repossession order, even though they are still within the fixed term.I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.0 -
zzzLazyDaisy wrote: »You are only guarantor for your daughter. The problem is that she is liable for the whole of the arrears, as is each of the other tenants (and their guarantors).
As someone else has said, you may be able to get the guarantee declared void if you did not receive a copy of the tenancy agreement, or if the guarantee agreement was not properly executed, but that does not absolve the individual tenants from their liabilities under the tenancy agreement.
If at all possible your daughter and her co-tenants need to find someone to take over the vacant room, this will at least stop the arrears from accruing.
If the missing tenant and his guarantor can be found, you may be able to have them joined to the court proceedings as co-defendants, but the fact is that the LL will enforce the CCJ against the easiest targets.
The situation sucks, but that is the nature of joint tenancy agreements and guarantor agreements. Also, remember that once the arrears amount to the equivalent of two months rent, the LL can serve them with notice and seek a repossession order, even though they are still within the fixed term.
They have tried to get another tenant but failed. We are worried that the LL will evict the other tenants they have just paid their final instalment which means they have paid till 31st August
The defaulting tenant did make a without prejudice offer of £1000 in full and final settlement which was rejected by the LL
The property is let from 1st Sept 2013 to new tenants.0 -
..... they have just paid their final instalment which means they have paid till 31st August
.
They have NOT paid till 31st August. Any payment now being paid is efectively reducing the arrears and (perhaps) bringing the rent up to date. But they STILL owe the FULL rent for the ENTIRE tenancy.
Jointly & severally.
You are not adding any new information I'm afraid. The legal position, together with advice, has been explained in posts above.
To avoid incurring court costs, AND to protect against a S8 Notice (eviction based on arrears), the tenants should pay the rent as specified in the tenancy agreement.0 -
We are aware of what joint and several means - although we were not supplied with a copy of lease by Letting agents when they sent guarantor forms and thought that we were only guarantor to our daughter.
As you were not supplied with a copy of the lease prior to signing the guarantee, how can the agent prove that you were aware of joint liability.
As you thought ( how can you prove this?) you were guaranteeing only your daughter's share, how is there a meeting of minds to make the contract of guarantee valid.
Much depends on how the guarantee was worded and any accompanying correspondence.
What attempts has the landlord made to mitigate his loss.
You need someone who is an expert in contract law.0 -
Okay then please can you indicate what the judgement will state will it allocate a portion of debt to each tenant split evenly or how will it be worded. The defaulting tenant is still in touch0
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