Rental guarantor

Maddie1983

Hi all,

I'm after some advice please regarding me been guarantor for my now ex's sons. I am guarantor as his two sons rented a flat, at the time I was with their dad but now split 9 months ago. I have asked to be released from the agreement, however due to unpaid debt (now settled) they wasn't possible, however I believe the estate agent wasn't helping.

Looking at the guarantor agreement it says I'm guarantor for the two sons only, however the dad has been living at the property for 9 months. My understanding this is breaking the agreement as I only agreed to be guarantor for the two sons not their dad, as such would the agreement be invalid as I will not be guarantor for another party living at the property. 

I'm happy to post the agreement here if helps?

I really need to get out of this as stressing me, I'm not in a financial position to be guarantor as my salary has changed and I'm basically a guarantor for someone I don't associate with which is unrealistic and unfair. 

Thanks

Maddie

eddddy

Is their dad simply staying as their guest, or maybe as a lodger  (or maybe even as a sub-tenant)?

If so, that may (or may not) be a breach of the sons' tenancy agreement - and you could report that to the landlord, if you want. But that wouldn't release you from the guarantor agreement.

But if you guaranteed a tenancy agreement (with 2 tenants) and that agreement has been terminated, and there is now a new tenancy agreement for 3 tenants - then you shouldn't have any liability for that.

DullGreyGuy

It is notoriously difficult to end being a guarantor, there is simply no motivation for the landlord to accept any form of voluntary termination. 

The one positive is that agents are typically very bad in following due process on setting up the deed to make you a guarantor in the first place and so looking for mistakes they made there is the main defence against any future collection attempts. 

propertyrental

Details of the tenancy are needed:

1) When was the tenancy agreement created - before or after dad moved in?

2) I assume you signed as guarantor at the same date as 1) above, yes?

3) who is named on the tenancy agreement? Son A and/or Son B and/or dad?

My guess is that A & B are the named tenants and the tenancy was created before dad moved in, in which case you are guarantor for that tenancy. Dad is irrelevant as he is (I'm assuming) not on the tenancy agreement so is a lodger, guest or other 'Excluded Occupier'.

It is the two sons who are responsible for the rent, and you are responsible for any arrears.

However the set-up may be different to that above.

And, of course, we are assuming the Guarantor Agreement is valid.

I have asked to be released from the agreement,

You can ask, but cannot insist. The Landlord can agree, or refuse.

Having a guarantor adds an additional level of protection for a landlord so rhere's little incentive for him to make himself more vulnerable by agreeing.

saajan_12

Maddie1983 said:

Hi all,

I'm after some advice please regarding me been guarantor for my now ex's sons. I am guarantor as his two sons rented a flat, at the time I was with their dad but now split 9 months ago. I have asked to be released from the agreement, however due to unpaid debt (now settled) they wasn't possible, however I believe the estate agent wasn't helping. - well a rental with a history of late payment is the last one a LL would reduce their security on. The EA is doing their job by safeguarding the LL there. 

Looking at the guarantor agreement it says I'm guarantor for the two sons only, however the dad has been living at the property for 9 months. My understanding this is breaking the agreement as I only agreed to be guarantor for the two sons not their dad, as such would the agreement be invalid as I will not be guarantor for another party living at the property. The tenancy is likely still just with the 2 sons and perfectly valid. You're guaranteeing the sons obligation to pay rent, which has nothing to do with who's living there. Your logic is flawed:
 - Even if the 3rd occupant is a breach, the LL could choose to enforce it but doesn't have to and certainly wouldn't lose out further by also losing the guarantor. 

I'm happy to post the agreement here if helps? - yes do post it, sometimes these aren't drafted correctly in the first place. 

I really need to get out of this as stressing me, I'm not in a financial position to be guarantor as my salary has changed and- the tenants are still just as responsible, so if your salary was lower, the LL would probably just go after the sons if higher anyway. But this is a 'probably' not a legal clear cut thing. 

I'm basically a guarantor for someone I don't associate with which is unrealistic and unfair. - well that's what you signed up when breaking up was a possibility. What's unfair is expecting the LL to lose a guarantor and hence source of recovering any future monies due, because of a break up and change in living situation completely unrelated to them. 

Thanks

Maddie

Comments in line - basically unlikely you'll get out of being a guarantor unless they move out or re-sign. The dad is a red herring. This is why people should only be guarantors if they are happy with the open-ended responsible. 

Maddie1983

Heya everyone, thanks for the responses. I believe a new tenancy has been signed. The original was for 12 months and they have been there 18 months. 

Maddie1983

Here is the agreement 

T IS HEREBY AGREED THAT: 1. 2. 3. 4. 5. 6. 7. IN CONSIDERATION of the Landlord having agreed at the Guarantor’s request to grant to (Removed by Forum Team) (“the Tenant”) a tenancy for the dwelling known as (Removed by Forum Team) (“the Property”) upon the terms and conditions of the agreement attached hereto (“the Agreement”).  The Guarantor agrees to comply with the terms of this Guarantee and to ensure the Tenant’s compliance with the terms of the Agreement and to fully compensate the Landlord for any loss, damage, costs or other expenses arising either directly or indirectly out of any breach of the Agreement. Specifically, if the Tenant fails to pay the full rent due under the Agreement, the Guarantor agrees to Pay rent at £ 525.00 (five hundred and twenty five pounds) per calendar month upon demand. The Guarantor further agrees to indemnify the Landlord against any costs, expenses, damages, or losses they might incur, however they might arise, due to allowing the Tenant to occupy the Property.  The Guarantee shall continue throughout the period that the Property is occupied by the Tenant or any licensee and is not limited to the term specified in the Agreement. This Guarantee will continue throughout the Tenancy or any extension renewal or re-grant continuation of the Agreement whether for a further fixed term or periodic tenancy and whether it is created by agreement between the Landlord and the Tenant or by operation of law or otherwise. The Guarantor will also be liable for any increase in rent agreed between the Landlord or any person acting on his behalf and the Tenant irrespective of whether the Guarantor is notified of the increase by the Landlord or any person acting on his behalf.. The Guarantor’s liability is joint and several with the Tenant. This means that each will be responsible for complying with the Tenant’s obligations under the Agreement both individually 

and together; and the Guarantor’s liability will not be discharged or affected by any act, neglect, leniency, other concession or time given to the Tenant by the Landlord endeavouring to obtain payment; or in the enforcement of the Tenant’s obligations under the Agreement. 8. 9. 10. 11. 12. This Guarantee shall not be revocable by the Guarantor nor will it be rendered unenforceable by the Guarantor’s death or bankruptcy, but instead it shall fall as a liability on the Guarantor’s estate.  If the Guarantor is a company, the Guarantor’s liability shall continue if the company changes ownership, alters the name of the Guarantor, or is amalgamated with any other Company or organisation throughout the period that the Property is occupied by the Tenant or any licensee and is not limited to the term specified in the Agreement. If the Tenant defaults during the initial Term or any extension or renewal of the Agreement; or in the event of the Tenant being declared bankrupt; and the Tenant’s Trustee in Bankruptcy elects to disclaim the Tenancy; then on demand the Guarantor will indemnify the Landlord against all losses, claims, liabilities, costs and expenses arising out of or in connection with that default or disclaimer; or incurred by the Landlord in connection with the default or disclaimer. If the Tenant surrenders any part of the Property to the Landlord or one or more of the original persons forming the Tenant to whom the Tenancy is granted abandon the Property or surrenders their interest in the Tenancy the Guarantor’s liability will continue in respect of the part not surrendered and/or in respect of any persons forming the Tenant who have not abandoned or surrendered the Property.  Any liability accrued at the date of surrender will stand. The Guarantor will pay any and all reasonable costs incurred by the Landlord in enforcing this Guarantee and the terms of the Agreement or any extension renewal or re-grant continuation of the Agreement, whether for a further fixed term or periodic tenancy, and whether it is created by agreement between the Landlord & the Tenant or by operation of law or otherwise. The Landlord’s reasonable costs payable by the Guarantor shall include the full costs of any legal advice or proceedings the Landlord is required to take to enforce his rights. Signed by: guarantor sign here ………………………………………  (Removed by Forum Team)

DullGreyGuy

Is the end of the document just signed by you as you've put it?

A deed should have been signed by both parties and both parties would have had to have a witness sign against their signature. 

propertyrental

Maddie1983 said:

Heya everyone, thanks for the responses. I believe a new tenancy has been signed. The original was for 12 months and they have been there 18 months. 

'believed'? You need to check. The original 12 month tenancy may have simply rolled over to a periodic. So, please answer to Qs I asked earlier!

Kim_13

If the sons are living elsewhere they may be breaking their terms with the LL, but the LL can continue to chase you for the rent as the guarantee (if valid) refers to the period the property is occupied by the tenants or any licensee, which would be their father in this case. To my knowledge it would still be up to the LL whether they chose to take action over any breach and to ask a court to end the tenancy. 

Will the sons agree to give notice to end the tenancy? Only they or a court can end it.

You could demonstrate to the LL that your circumstances have changed and argue that the LL would be better off finding another tenant rather than continuing to have the tenants’ father there. While the guarantee appears to cover any damage he might cause and the rent, if you don’t have it they won’t be getting the money.

If the father has been issued with his own tenancy agreement, you are not liable, but this is unlikely as if so the EA would surely have told you that the tenancy you had agreed to guarantee had ended and with it your liability. 

The sons could give notice to end the tenancy, but their father will still need to vacate by the agreed date for there to be no complications (as penalties are due for remaining past tenancy end.) Otherwise at the end of 12 months, it became a rolling tenancy. The 12 months guarantees that the LL is due rent for that minimum term and that the tenant will have the right to occupy the property for at least that time; it is similar to your phone or broadband package in that it will continue beyond if no action is taken. The expiry of the 12 months never gives the LL the property back, which they look to have covered in the guarantee by referring to extensions of tenancy created by the operation of law. 

Unless others can suggest ways in which the guarantee is invalid, your options other than the above would seem to be informing the sons that your income has fallen, so if their father fails to pay the rent, it may well fall to them (which might prompt them to serve notice and take the keys back from their father in good time) or not paying if LL tries to exercise the guarantee and arguing that the sons had abandoned the property when they allowed their father to live there alone/that your continuing to be held liable for the rent when neither of the tenants reside there is an unfair term. This could well fail and I am in no way recommending it, but it’s the only potential way out that I can see if neither the sons or the LL will help you.

Maddie1983

DullGreyGuy said:

Is the end of the document just signed by you as you've put it?

A deed should have been signed by both parties and both parties would have had to have a witness sign against their signature. 

Just my signature and no one elses