Guarantor agreement

mrginge

Marktheshark wrote: »

Reichman v Beveridge refers to a commercial lease not a AST.
Two parties of equal standing in a commercial lease set up.

Like I say, I can find no evidence that the commercial nature of r v b makes any difference.
Please provide me with some.

rpc

mrginge wrote: »

Like I say, I can find no evidence that the commercial nature of r v b makes any difference.
Please provide me with some.

You won't find any until such an argument reaches a higher court in relation to an AST (and thus sets further precedent).

Hence why I say "may not set precedent." Precedent is almost always very narrow in scope.

You will also find no evidence that the case cited does set precedent for an AST. Only opinion.

jjlandlord

There are precedents relating to ASTs. As said the position applies to all tenancies.

I don't see the point of arguing this.

starburst123

Okay so I am not sure if the case quoted above would apply but having spoken to the legal helpline through our home insurance he believes the clause "If the tenancy is periodic then this guarantee may be terminated by written notice by the G subject to T vacating at the earliest legally permissible date required for possession. If the T fails to vacate on this date then the guarantee shall continue until the T vacates" is in breach of the OFT guidance on unfair terms which would apply as the LL is listed as the LA on all the paperwork and so a business and would have a significant imbalance in their favour by being bound to this.

He said to give notice and state that obligation will only be considered up until the notice expires, and the fact that she won't leave is not our issue - however I'm not sure what the notice period in this case would be, and I'm also not sure if opting out in this way is better than trying to get the whole agreement cancelled altogether.

He also said it doesn't matter if no mention of the word deed appears on the "guarantor agreement", it still is a deed because of how it has been presented, yet I thought it had to reference itself as one in some way shape or form.

Confused...

jjlandlord

starburst123 wrote: »

He also said it doesn't matter if no mention of the word deed appears on the "guarantor agreement", it still is a deed because of how it has been presented, yet I thought it had to reference itself as one in some way shape or form.

If they don't know that for a document to be a deed it must contain a clear and unambiguous statement that is it a deed then I think you can probably write off anything and everything they tell you unless you can double check it.

starburst123

jjlandlord wrote: »

If they don't know that for a document to be a deed it must contain a clear and unambiguous statement that is it a deed then I think you can probably write off anything and everything they tell you unless you can double check it.

My heart did sink when he said that, in fairness that was right at the start of the conversation....

My understanding of what he is thinking is that notice should be given as it is now periodic and the fact that the T will not vacate should not hold the G agreement indefinitely (unfair term) - so by this line of thinking G would give the statutory notice period (1 month in line with contract date) and consider it done with, T not vacating not his concern as not in his hands.

However by doing this G would be acting as if he was bound by the agreement which then means he can't go for saying the agreement was invalid in the first place. I guess it boils down to which would be the stronger argument. The solicitor I called today for an appointment hasn't yet called back so I am looking into others.

starburst123

I asked him about the consideration involved in a deed and he said the consideration is the LL granting the tenancy to start with...

jjlandlord

starburst123 wrote: »

I asked him about the consideration involved in a deed and he said the consideration is the LL granting the tenancy to start with...

A deed does not require consideration.
This is why guarantees are usually deeds.

starburst123

Which is why the guarantor agreement, which doesn't state it is a deed and therefore ought to offer consideration but perhaps doesn't sufficiently so, could potentially be unfair under the OFT guidelines then?!

(I'm not giving up the day job don't worry - currently trawling through solicitors websites)