Letting agent is pursuing me for guarantee on a new tenancy agreement

princeofpounds

Agree with spiderlegs and artful lodger. I think it's quite unlikely that a court would hold you to this guarantee, if you got your defence right.

It was never executed as a deed, or contained any consideration. Therefore it is not a valid contract. You were not provided with copy of the tenancy agreement prior to signing (this would be a big thing to avoid joint and several liability at the very least). There has been a material change in the tenancy agreement since signature. The term to continue for any future occupation of the property, whatever form it takes or however long it is, would probably not pass muster under Unfair Terms in Consumer Contracts legislatin.

greatcrested

stuptelf said:

...
When my son signed this new tenancy agreement he committed to a new fixed term with a minimum amount of payments.

1) did only he sign,or did all the joint tenants sign?

2) By definition a fixed term with rent due (usually) monthly, requires a specific number of payments.

3) what does the TA agree say at the top of page one for "The Rent"?

I signed a guarantee for a 12 month tenancy after which time it would become periodic.

That applies to all fixed term tenancies, unless the tenant leaves.

At the end of that first tenancy his liability was rent for a notice period and mine was the same

standard for most Deeds of Guarantee

or until I terminated the guarantee.

A guarantor cannot unilaterally terminate a Deed. That's the point of a Deed. Possibly you could terminate a 'letter' though!

Signing the new tenancy created a new 12 month obligation for him which they want to extend to me despite me having no knowledge of the new tenancy. Is that the crux of the argument?

Yes.

Plus the validity of the original letter itself as it was not a Deed (see above!)
The letting agent was happy to contact me when they were asking him for some paperwork and he wasn't answering messages but not to tell me that they were having problems getting rent on time or to ask for a new guarantee.

They had no obligation to inform you of the rent arrears until they chose to request/demand them from you.

They were stupid not to ask for a new guarante, though it would also have been stupid to ask for a similar letter, rather than a Deed.

Yes, it's a joint and several tenancy and the tenancy agreement specifies the room each tenant is renting.

The landlord is an idiot. That is a legal nonsense, and also makes a further mockery of the guarantee.

He is renting a house to a group of tenants, for an agreed rent. That group is a single legal entity - "The Tenant". (note, singular). What they do within the house eg allocating rooms, cleaning/maintaining it, damaging it etc is up to them. They all have equal rights, and equal liabilities for the house as a whole, for the rent for the house, and for any damage to the house. That is what 'joint and several' responsibility means in law.

If, however, the landlord is charging each tenant individually, for the specific room they are allocated, then the other tenants are by definition not jointly and severally liable. They are each soley liable for their own room.

In which case they have separate sole tenancy agreements.

The landlord has no idea what he is doing, eitger with regard to the tenancy agreement, nor the guarantee agreement.

A judge would rip him apart,or simply fall off his chair laughing.

Either deny liability, and explain one or all of the above points, or perhaps better still, simply ignore and let the LL pick up the costs when he fails in court.

That does not, however remove your son's liability for the rent, and possibly the other tenants' equal liability for your son's rent (depending whether they are, indeed, 'joint and several')!

Edit: Ah! Of course! Renting out the rooms individually on sole tenancy agreements would create an HMO (House of Multiple Occupancy)! these have to be licenced, and have stringent rules on fire safety, number of bathrooms, size of kitchen etc etc.

The LL is trying to find a legal loop hole to avoid this.

You could contact the HMO dept at the council, enclosing a copy of the tenancy agreement, highlighting the section allocating rooms (and individual rents?).....

stuptelf

This is pages 4 and 5 of the new tenancy agreement he signed where it refers to the rent. I didn't know this existed until I asked for a copy of the agreement when they asked me to pay. I was expecting a copy of the tenancy agreement I was given when I was asked to sign a guarantee.

princeofpounds

Further to my earlier comments. 

The 'new' tenancy - is the rent higher than the old tenancy? (I know your relative has a cheaper room).

If it is a joint and several agreement, and the total rent is higher, then on top of everything else that's yet another reason why the guarantee would not be enforceable. You cannot change the terms of a guranteed agreement without the approval of the guarantor, particularly to their detriment, and keep a valid guarantee.

macman

I agree with greatcrested: this is a cynical but amateurish attempt by the LL to avoid the repercussions of the property being classified by the LA as an HMO, which it clearly is. So that is the remedy for the OP: tell the LL that the guarantor status has expired with the issuing of the new tenancy, and that any further attempt to enforce it will result in the property being reported to the LA as an unlicensed HMO.

Give it a couple of months, then dob them in anyway.

greatcrested

Surprised this is on pages 4 & 5. Key elements are usually on age 1.

What is on Pages 1-3?

The property description? Just the address, or any breakdown by room?

The 'Landlord' name? I guess that at least is accurate!

The 'Tenant' name? Just one name, or 4 names?

So this new TA has no breakdown as you suggested earlier of the cost room by room? But the original one you guaranteed did?

He's having  a laugh.

stuptelf

Here are the first 4 pages ...

Notnewnotold

"Being part of the building known as Room 1, 2 & 3"

Oh, and reference to a "communal area"!

The qualification about the TV license being for the lounge only is also nonsense if this really is a joint tenancy... 

https://www.tvlicensing.co.uk/faqs/FAQ35

So this is an unlicensed HMO all day long. Did these "rooms" come with locks on the doors by any chance?

stuptelf

I emailed the letting agent yesterday saying that without prejudice I withdrew any alleged guarantee. They have responded saying that I would need the landlord's permission which he is unlikely to agree to. If they hadn't entered into a new tenancy agreement the tenancy would have become periodic and a guarantor could give notice to withdraw the guarantee unilaterally, is that correct? If so, they are saying that I have no right to terminate the guarantee which is already established as an unfair contact term, right? With the advice I've got on here (for which I'm very grateful) and the responses from them I've come to the conclusion that they are cowboys. I asked for a copy of their complaints procedure and details of the ombudsman scheme they belong to which they've not provided. I've asked again.

greatcrested

How big is this building? Are there other 'rooms' (bedrooms) and other tenants, also sharing the 'communal area'? That's what it suggests.

So there are 3 joint tenants, jointly and severally responsible for the full rent (£1,105 pm) for the 3 rooms (plus communal areas). How they allocate the rooms/rent amongst themselves is up to them.

If your son has not paid his agreed 'share', the other 2 tenants are equally liable to the landlord for the arrears. (joint and several).

IF the guarantee agreement were valid, you'd be liable also for the full £1,105 should it be unpaid.

But as discussed it's unlikely to be valid.

I emailed the letting agent yesterday saying that without prejudice I withdrew any alleged guarantee. Not what I would have recommended.Your arguement should be that the guarantee agreement is invalid, not that you wish to withdraw. Indeed, by saying this you have implied that you accept the guarantee IS valid.

They have responded saying that I would need the landlord's permission which he is unlikely to agree to. Indeed.  a) as already explained earlier, a guarantor cannot unilaterally withdraw from a valid agreement and b) why woud the LL agree?

If they hadn't entered into a new tenancy agreement the tenancy would have become periodic and a guarantor could give notice to withdraw the guarantee unilaterally, is that correct? No. Where did you get this idea? Certainly not from anything in this thread! If so, they are saying that I have no right to terminate the guarantee which is already established as an unfair contact term, right?

They are right that you canot withdraw.

Though as discussed at length, you can (should have) argue that the agreement is invalid and therefore you have no liability and no need to withdraw.

I asked for a copy of their complaints procedure and details of the ombudsman scheme they belong to which they've not provided. I've asked again.

Have you checked their website?