Rental guarantor

Maddie1983

propertyrental said:

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!

Yes, I believe so as I know estate agent has been done again. 

Apologies about the questions;

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

Created before. 

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

No after, if I recall they had it like that when I got there as I signed after work on a Friday; 13th Sept is a Monday. 

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

Maddie1983

Kim_13 said:

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.

Heya,  the sons still live there with their dad. 

propertyrental

1) so dad moving in was a matter between him and Sons A & B. Nothing to do with the LL/agent. Dad was (is) either a lodger of the sons, or, if the sons have moved out, then he is a sub-tenant.

But none of that affects the original tenancy between A & B and the LL, which is ongoing and which you guaranteed

2) you could, of course, have refused to sign the guarantee agreement, and as the tenancy was already in place there would have been nothing the LL could have done

3) As per 1) above, the tenancy has not ended or been changed since A & B moved in, so the guarantee is still in force. Ending the tenancy would end your liability, biut can only be achieved by either a) the tenants (A&B) serving proper notice and handing the proiperty back vacant or b) the LL applying to court and the court ending the tenancy.

Kim_13

As the tenants still live there, the LL is not going to be bothered at all by their father’s presence. The wording in the guarantee about the tenants or any licensee would seem to have been designed to cover this kind of situation, so there is no incentive for the LL to make any changes (unless their father was now a better prospect for securing any unpaid monies, in which case the LL would create a new tenancy agreement including him.) 

Avenues now, then: 

a) Find out if another tenancy has been issued - and it would have to be one with the father’s name on it - as there is wording in the guarantee to tie you to any subsequent minimum term the sons may have agreed to. 

b) Alert the LL to your change of salary, which might prompt them to do the above or to serve the tenants notice and find another tenant where they or their guarantor were more likely to be able to pay.

c) Go down the route of challenging the guarantee if the LL tries to use it to recover money from you. That it was not witnessed is good news for you, but no point taking that any further than a letter you write yourself unless the agreement causes a problem, as it’ll cost. If it came to it and the guarantee were deemed valid, I’d then try arguing that the term tying you to a new minimum term without your express agreement was unfair. It’ll be considered fair in the case of the tenancy becoming a rolling tenancy beyond 12 months, as the LL cannot stop that, but they didn’t NEED to issue a new minimum term to the sons if that is what they have done.

It’s a bad system, as the liability would be potentially endless, so in future only agree to sign any such agreement if there is some kind of limit put in that you are happy with. Some guarantee would, to a LL, be better than none at all. This one puts all of the risk on you and absolutely none of it on them. But many things about the rental sector are not fair, including that bad tenants can carry on not paying rent, trashing the property and breaching terms and can only be stopped by a court and bailiffs (potentially at the landlord’s own expense, as they will not recover the costs of the required legal action if the tenant doesn’t have the means to pay.)

While it is morally wrong if the sons are prepared to continue to use their father’s ex as a meal ticket, legally the purpose of the agreement was to secure them a place to live, and as they still live there, their father’s presence is immaterial. No guarantee would ever agree to release the guarantor in the event of a separation; if it did, that would be a loophole for those willing to play the system.

DullGreyGuy

Maddie1983 said:

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

In which case were anyone to ever attempt to sue you then you have a strong defence that there is no legally enforceable agreement in place between you and the landlord but there is no way you can stop them suing you or agreeing to acknowledge you have no liability in advance... you can just get out of it if/when they do... not ideal as we all would rather the hassle but better than actually be on the hook.


In England and Wales contracts require both an agreement to contract and consideration (ie you have to do something after agreeing such as making payment) and so has a natural safety net built in of the two step process. If there is no consideration from a party then it cannot be structured as a contract but has to be done as a deed. Because there isn't the safety net of the two step process the law requires a witness to attest to the fact it was indeed you signing up to the one sided agreement, no one had a gun to your head etc. 

As originally stated, letting agents are sloppy doing these things and often the deeds aren't executed properly so have no legal standing.

FlyMeSomewhere79

Definitely have a conversation with the landlord because you have no connection or relationship of any kind with these people now.

I'm assuming the ex didn't sign as guarantor because he wasn't in a great financial situation at the time but needs to take responsibility now especially as he's living under that roof also. 

Explain to the landlord that the arrangement not only isn't financially viable anymore but it makes you vulnerable to your now ex partner in that he could happily not pay rent and stitch you up with it. Nobody should have a financial link to an ex that can be easily exploited at any time.

kipperman

FlyMeSomewhere79 said:

Definitely have a conversation with the landlord because you have no connection or relationship of any kind with these people now.

I'm assuming the ex didn't sign as guarantor because he wasn't in a great financial situation at the time but needs to take responsibility now especially as he's living under that roof also. 

Explain to the landlord that the arrangement not only isn't financially viable anymore but it makes you vulnerable to your now ex partner in that he could happily not pay rent and stitch you up with it. Nobody should have a financial link to an ex that can be easily exploited at any time.

You are missing the point of the OP being a guarantor - assuming the documentation is watertight ( and it may well not be)- why would a landlord relinquish his/her security simply because the situation is not financially viable or makes someone "vulnerable". This would be  why legal advice about these sorts of situations is vital - a lawyer is in a far better position to advise on all the different "what ifs" that might happen. 

Grumpy_chap

Finding a way to relinquish a Guarantorship is very difficult.  If it has been prepared correctly, the LL simply has no reason to allow the Guarantor to walk away.
The OP may find this thread worth a read:
https://forums.moneysavingexpert.com/discussion/comment/80524887

Maddie1983

Thanks for your help everyone. The fact there's no witness signature is good on the guarantor. 

eddddy

Maddie1983 said:

Thanks for your help everyone. The fact there's no witness signature is good on the guarantor. 

Not quite.

The fact that it is not executed as a deed is a kind of 'technicality' that means you could/should win in court.

(One feature of a deed is that it would have a witness's signature.)

Even if you point this out to the landlord, they might still take you to court for rent arrears etc, in the hope that the court will ignore the 'technicality'. (And/or in the hope that you will pay up to avoid the hassle of a court case.)