Guarantor agreement

starburst123

(Copied from another board)

Hi all, have previous threads on this but looking for advise on the legality of this guarantor agreement please as we are rapidly losing patience with both the LL involved and the tenant... Currently facing court action for rent unpaid as well as £500 of fees when the LL haven't even instructed a solicitor according to the claim form - have asked twice for a breakdown of their fees as have never seen them (supposedly an appendix to the tenancy agreement - was never provided) and so far they have ignored both requests so will be putting this in the defence on the claim form... Should add the LL is termed as the agent on this agreement, not the actual owner of the house

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Any opinions welcome (and my first time ever posting images so hope it worked)

G_M

On the plus side (from the LL's point of view):

* the document states (I don't know if true) that the tenancy agreement was provided in advance for the guarantor
* the signature was (presumably) witnessed
* the agreement states clearly what the guarantor is guaranteeing

On the minus side, it is not described as a Deed nor Executed as a Deed - it is described as an 'agreement' and uses terms like 'consideration' (inacurately) perhaps in an attempt to make it a contract.

Strictly it should be a Deed. but courts do sometimes accept 'agreements' like this if it appears clear the guarantor knew what was being asked of them (some kind of 'natural justice' theory).

No need for the LL to instruct a solicior - that is irrelevant.

Clearly you should have been provided a breakdown of costs claimed, both before the legal action started and as part of the claim.

Should add the LL is termed as the agent on this agreement, not the actual owner of the house

?? So are there 3 people involved: 'owner', 'landlord' and 'agent'?

What names appear where?

Plus.... does the tenant actually owe money? If so, since it appears you did volunteer to guarantee the tenant's liabilites, you owe the money.

starburst123

G_M wrote: »

On the plus side (from the LL's point of view):

* the document states (I don't know if true) that the tenancy agreement was provided in advance for the guarantor - at the time of signing in their offices, not in advance, neither was this, the tenancy agreement has not been signed by the guarantor
* the signature was (presumably) witnessed - by an employee of the agency who is named on the paperwork as the landlord
* the agreement states clearly what the guarantor is guaranteeing

On the minus side, it is not described as a Deed nor Executed as a Deed - it is described as an 'agreement' and uses terms like 'consideration' (inacurately) perhaps in an attempt to make it a contract.

Strictly it should be a Deed. but courts do sometimes accept 'agreements' like this if it appears clear the guarantor knew what was being asked of them (some kind of 'natural justice' theory).

No need for the LL to instruct a solicior - that is irrelevant.

Clearly you should have been provided a breakdown of costs claimed, both before the legal action started and as part of the claim. _- it just says £x rent arrears and £x fees and court fees - no letters were ever received by tenant or guarantor before claim forms were sent, yet copies of one letter to each are in the particulars of claim - it would appear this letter warrants £340 of charges

?? So are there 3 people involved: 'owner', 'landlord' and 'agent'?

What names appear where? - The owner of the property is not named anywhere, the agency is referred to as the landlord, it is one of those guaranteed let agencies

Plus.... does the tenant actually owe money? If so, since it appears you did volunteer to guarantee the tenant's liabilites, you owe the money.

Thanks for taking the time to reply - the rent arrears have been settled twice by us already (last time in October) to the tune of hundreds - the tenant cannot afford the property and is looking elsewhere but the agency issued court claims at the drop of a hat and has over the 18 months of the tenancy charged over £1000 in fees for £2000 of recorded rent arrears - we are loathe to keep paying these extortionate charges for two sets of claim forms and two or three letters issues over the whole term so far. If the guarantee is withdrawn the tenant will I assume be evicted which they will have to deal with - but currently they are on a periodic tenancy with us being milked every 4-5 months for hundreds. We are not homeowners and at this rate never will be so I don't know where they think the money is coming from each time as there are no assets to pursue

starburst123

And the tenant has been paying rent still - they were actually only 2 weeks behind when this court claim was issued (they pay in installments as they receive housing benefit)

anselld

starburst123 wrote: »

And the tenant has been paying rent still - they were actually only 2 weeks behind when this court claim was issued (they pay in installments as they receive housing benefit)

Why do you think "only 2 weeks behind" is OK? The point of a guarantor is to guarantee the T's commitments under the contract.

G_M

Tenancy agreement does not need to be signed by guarantor (though it's quite a good idea as a 'belt & braces' approach)

If both documents were provided in the office and you had opportunity to read them, fine. If they were shoved in front of you and told 'sign here', not fine.

But of course it's a question of proof.....

As it's one of those guaranteed let agencies then yes, the agency is the landlord. The owner has let the property to the agency (agency is the owner's tenant); the agency has then sublet to the occupant (agency is occupant's landlord).

So the agency employee who signed as 'landlord' was correct.

However assuming you intend to contest the validity of the guarantee agreement (not a Deed etc), you could also contest on grounds the witness was not independant.

How a court will rule on either of these grounds is debatable.

starburst123

I don't think it is acceptable anselld - but I do know that as the agent insists on having the claim paperwork delivered by hand a fortnight lapsed before the paperwork was received and the tenant did pay rent since then. If they are up to date now we don't know as despite emails to the agency they have not replied.

starburst123

Thanks G_M again - I guess we need to think carefully about what to do next. We have no idea what is owed on the rent now but do know this cannot continue like this...

G_M

Quicker you can get tenant out the better. This might involve agreement of landlord for 'Early Surrender'.

alternative is for tenant to give valid notice (is tenancy in fixed term? Or pariodic (monthly)?

Waiting for landlord to evict eg for rent arrears is pointless as LL can continue to chase you for the arrears so has no good reason to evict.......

cash cow comes to mind.

Of course, if you get the guarantee agreement struck out in court, you can bet your life the landlord will serve a S8 Notice on the tenant and evict for arrears!

starburst123

G_M wrote: »

Quicker you can get tenant out the better. This might involve agreement of landlord for 'Early Surrender'.

alternative is for tenant to give valid notice (is tenancy in fixed term? Or pariodic (monthly)?
Tenancy is now monthly yet no notice has so far been issued by agency despite threats to evict so it would seem they just intend to keep at the guarantor...

Waiting for landlord to evict eg for rent arrears is pointless as LL can continue to chase you for the arrears so has no good reason to evict....... Yes I think you are spot on there

cash cow comes to mind.

Of course, if you get the guarantee agreement struck out in court, you can bet your life the landlord will serve a S8 Notice on the tenant and evict for arrears!

That at least then is tenants problem not ours... An offer was made to agency by tenant to settle arrears which they refused.

Pixie5740

If you can't get guarantee agreement struck out at least see if you can get the LA fees for the arrears removed as they seem really high and I think you can only incur financial penalties and fees for arrears if it's written into the TA. For example, my TA says that if my rent is late I'll be charged X% + BoE base rate in interest.