Guarantor Debt

_Penny_Dreadful

I would say that clause 3 is an unfair term. Even with a correctly executed guarantee the guarantee doesn’t extend to material changes in the contract and rent increases are a material change. 

Clause 5 is most likely pointless. Any council tax owed is between the tenant and the council, this contract can’t make SS liable for it as it’s not something the LL would ever be liable for either. Similarly, any accounts the tenant has with utility suppliers are between the tenant and the utility company and has nothing to do with the landlord and therefore by extension has nothing to do with SS.

SS would have seen the clause about legal advice if he gad bothered to read the contract himself rather than delegating to his wife who also clearly didn’t bother to read the contract. 

As for the landlord’s letter before action, that is a contradictory load of bollox in my opinion. SS cannot evict the tenant. There is no legal mechanism that allows a guarantor to evict a tenant. If the landlord wants the tenant gone then he has to start the process himself be issuing either a valid section 21 or valid section 8. 

What does that landlord want to do, sell or move back in? The LBA seems to indicate both. 

The landlord’s cost of operating the business are not SS’s concern. If the business is not profitable he needs to sell or increase the rent, neither has anything to do with SS.

In SS’s shoes I’d do one of the following, ignore the LBA completely or respond to the LBA stating that there is no legal mechanism for a guarantor to evict a tenant and that the landlord must use the legal processes available to him to evict the tenant ignoring the rest of the nonsense in the letter. I certainly would not hand a penny over to the landlord at this time. SS could even suggest mediation to the LL as courts like when you try to resolve issues before getting to court. 

Should the LL go as far as filing a MCOL I think it would be easy for SS to defend against most, if not all, of the LL’s claims. 

Flopfluppet

Thank you very much PD just one thing, what is MCOL?
I do have to wonder, after all the money spent with the solicitor,  their letter wasn't as positive as your comment? Everything they wrote was 'solicitor terms' and SS just told me solicitor effectively said it was hopeless,  I had to plough through it to find the glimmers of light! But they didn't even give any suggestions as to what is unfair, as you did, just said it needed more thought. I take that to kean more money.
Appreciate your help, I really do.

Olinda99

have followed this thread and have a thought which may or may not be correct

if it fails as a deed then it's may become a simple contract as stated

does the landlord have a due to minimise losses under that contract ie have a duty to the evict a non-paying tenant and not to let losses pile up

theartfullodger

MCOL is "money claim on-line", small claims.

Going to court for debt.

Flopfluppet

Thank you all, just about to draft a letter to the LL. I will update again once this has eventually gone to court, unless something happens in between,  so at least you will know how the saga ended.
I really hope that anyone considering being a guarantor will read this and other threads on here and decide not to!

RHemmings

Flopfluppet said:

Thank you all, just about to draft a letter to the LL. I will update again once this has eventually gone to court, unless something happens in between,  so at least you will know how the saga ended.
I really hope that anyone considering being a guarantor will read this and other threads on here and decide not to!

I was almost a guarantor two years ago, but I was scared off by a clause similar to your clause 3, after I had been verbally assured that would not be the case. 

In my situation, the landlord decided to go ahead without a guarantor, and so far there has been no problem. 

Cloth_of_Gold

Flopfluppet said:

Thank you all, just about to draft a letter to the LL. I will update again once this has eventually gone to court, unless something happens in between,  so at least you will know how the saga ended.
I really hope that anyone considering being a guarantor will read this and other threads on here and decide not to!

This will certainly have been a salutary lesson for SS and a warning for anyone else considering doing such a thing. His kindness has backfired on him on this occasion but I hope that he gets an acceptable resolution - he deserves to.

Flopfluppet

I thought I'd update in case it may help someone in the future. I drafted a letter for SS to send by recorded delivery to LL. I included a number of points that had been suggested by you guys, and he sent it off to her. I did add as the final paragraph in it that 'they should be first pursuing the tenant for the arrears rather than the guarantor'. 
So that was February and now it's May. SS has heard absolutely nothing further from LL in all these months. They didn't even reply to that letter - it was received as the signature supplied by the post office matched the one on the paperwork for the property. Nothing from the tenant either.  
Obviously I don't know if it would take longer to take legal action but I would have thought if he was going to, SS would have at least had a solicitor letter.  I'm wondering if he's been advised he must first take the tenant to court for the shortfall/arrears and fail, before he can pursue SS.  I don't know if that is point of law or not. But at least SS has had the pressure taken off him for now. 
Again, I will post any changes. Once again, thank you so much for helping. Having people who are experienced in such matters helped immeasurably. 

doodling

Hi,

The advice to landlords would be to notify the guarantor as soon as loss is being incurred (as maybe the guarantor might put the tenant back on the straight and narrow) but it is only really worth suing once the size of the loss is known (which is usually after the tenant has been evicted).

Of course that doesn't mean that the landlord is being rational - they could simply be behaving in a random manner.