Housing/Tenants/Guarantor

Cynical61

I need some help please.
On the 10th of April 2019 my son took out a tenancy on a flat for 12 months and I agreed to be his guarantor. I signed the guarantor form at home and my wife witnessed it. At the time of signing the form I was aware that the tenancy was a joint tenancy with my sons friend. I only agreed to be a guarantor for my son. After many attempts to get a copy of the tenancy agreement and guarantor agreement I eventually got a copy of the guarantor agreement. To my horror i discovered that my sons friends name was on the guarantor agreement. When I challenged my son he was distraught with guilt and admitted he had added his friends name after I had signed the agreement. 
The tenancy lapsed into a periodic tenancy on the 11th of April 2020. My son submitted his notice to terminate the tenancy agreement on the 25th of June 2020 and left the premises on the 25th of July 2020. The other tenant is refusing to leave. I have had chats with the Tenancy Agent over the months and informed them verbally that I did not agree to be a guarantor for anyone other than my son and that the guarantor agreement was forged. The agents are stating that my son and I are still liable beyond the 25th of July for anyone all expenses incurred on the property. Does anyone have any advice please?

Cynical61

Sorry that should read 'any and all expenses'.

theartfullodger

Pay NOTHING and stop replying to  agent and/or landlord unless you get court papers.

It's likely that you are not liable: Hopefully they won;t take you & son to court: If they do, get legal help to defend yourself explaining you were not given copies of tenancy nor guarantee before signing nor advised to get legal advice.

Next time, decline to sign.

macman

Why do you say 'the other tenant is refusing to leave'? He appears to have a valid statutory tenancy. Even if he has been served with a valid S21, he gets 6m notice, and even then he can sit tight until such time as the LL is able to get a possession order. 
Is the rent in arrears, and if so by how much? 

greatcrested

There are two aspects to this.

1) the tenancy.

Your son and friend are joint tenants. The fixed term ended on 11/4/20 and became periodic on 12/4/20. The tenancy periods are therefore now 12th - 11th of each month. Note that your son and friend do not have separate tenancies, it is all or nothing.

On 25th June your son served notice to end the tenancy, which would expire one full tenancy period later, ie on 11/8/20 (not 25th July). Having said that, the LL's agent appears to have agreed an earlier end date for the tenancy yes?.This notice binds both tenants who must therefore leave on /before 11th august.

If one or both fail to leave on 11/8/20, the landlord can charge double rent (see Distress For Rent Act 1737 S18 ). This does not just apply to the friend - your son as a joint tenant remains liable as vacant possession has not been given to the LL/agent on expiry of the notice period.

2) the guarantee

To be valid

* it must be witnessed

* it must be executed as a deed

* the guarantor must have been given a copy of the contract (tenancy agreement) being guaranteed before execution

You can therefore argue that it is invalid as you did not know what you were being asked to guarantee - you had not seen the TA. It is likely a court would dismiss the guarantee agreement although

a) judges can be unpredictable and

b) if the LL/agent claimed you had been given the TA, and the judge believed this, your claim to have not seen it might be dismissed.

As for your son adding his friends name, I suspect the agent insisted - this is what normally happens. The guarantee agreement covers the tenancy as a whole, not just some artificial 'share'. After all, your son is legally liable for the full rent, and therefore so is his guarantor.

Without seeing the wording of the guarantee, it is likely that it will cover not just the fixed term, but any subsequent periodic tenancy- this is normal.

It is also normal that a guarantor cannot decide to withdraw their commitment. If they could, it would make the whole reason for a guarantor pointless!

macman

So, in the case of a joint tenancy, notice can be served by either tenant without the consent of the other? Joint consent is not required?

greatcrested

macman said:

So, in the case of a joint tenancy, notice can be served by either tenant without the consent of the other? Joint consent is not required?

Correct.

macman

Thanks, i was not aware of that. In which case, that explains why the OP said that the other tenant is 'refusing to leave'.

AdrianC

Cynical61 said:
On the 10th of April 2019 my son took out a tenancy on a flat for 12 months and I agreed to be his guarantor. I signed the guarantor form at home and my wife witnessed it. At the time of signing the form I was aware that the tenancy was a joint tenancy with my sons friend. I only agreed to be a guarantor for my son.

Minor problem. Your son is liable for the debts of the others on his joint tenancy, too. They are joint and several debts amongst all joint tenants.

So, yes, you are liable for the debts of the other tenants. As are any other guarantors when it comes to your son's debt.

Basically, it's a question of which guarantor(s) is/are easiest...

My son submitted his notice to terminate the tenancy agreement on the 25th of June 2020 and left the premises on the 25th of July 2020. The other tenant is refusing to leave. I have had chats with the Tenancy Agent over the months and informed them verbally that I did not agree to be a guarantor for anyone other than my son and that the guarantor agreement was forged. The agents are stating that my son and I are still liable beyond the 25th of July for anyone all expenses incurred on the property. Does anyone have any advice please?

Your son's joint tenancy is not over until vacant possession is returned to the landlord. Until that point, rent is due (double, once tenant-given notice expires). Any debts pertaining to regaining possession are also due... and they are joint and severally liable from all parties to the tenancy.

Cynical61

Hi thank you all for your comments and advice. We are both old age pensioners and did not expect to find ourselves in this position at our age.
Macman, I believe that is what the agent has told my son. Sorry don't know what an S21 is! The rent is I believe in arrears. 
It looks like we are in a bad position. There is a lot more to this situation that I cannot put on this forum but thank you all anyway. Take care and stay safe.

greatcrested

A S21 Notice is the official notice a landlord must serve if he wishes to end a tenancy.

By law, it must give an expiry date that used to be 2 months after the date it is served. That was extended to 3 months due to COVID-19, and has just been increased to 6 months.

After the expire date of the S21 Notice, the tenancy continues, but the landlord is able to apply to a court to end the tenancy.