Guarantor Solicitor Problem

SanMiguel80

I will be grateful if anyone could give some advice on the following (sorry for the long winded post):

In June of this year I received a letter from a solicitor demanding £7500 for unpaid rent on behalf of their landlord client who had evicted a tenant for which I was guarantor for and threatened to take me to court if I did not pay these arrears which the tenant had accumulated.

Since then I have contacted their solicitor by email on many occasions explaining as to why I do not believe I am currently legally responsible for this unpaid rent (another topic).

The solicitor initially replied to me as to why they believed that I am still liable, but each time I have been able to refute their counter claims by pointing out to them that their client or their client’s agents failed to follow due process and as a result had invalidated any previous agreement I had with them, and therefore their claim against me was not in accordance with the law and I am therefore no longer liable. Following a consultation with a solicitor, the main basis for myself dismissing their claim is that the LL failed to contact me or obtain my consent for any rent increases above that stipulated in the AST I originally signed and therefore the LL had invalidated any agreement held.

I have put this and other reasons as to why I do not believe I am liable to their solicitor and I have requested from them that they either confirm their future intentions on this matter or that they withdraw any further action against me. But all they keep doing when replying is fobbing me off, either by replying that they ‘will review this case this week and get back to me’ (that was a month ago), or ‘we are awaiting instructions from our client’ (3 months ago), or I get the ‘I am on holiday.’ automated reply etc.

My current demand is for them either to take me to court or to drop the case against me! Which they seem to refuse to do either way and seem to be quite happy to leave this matter in limbo which is currently causing my wife and I a great deal of worry. I really don’t want this hanging over me until say the statute of limitations expire.

Therefore my question is, can I force a solicitor (for which I am not their client) to make a decision to either take me to court or for them to confirm that they intend to withdraw their case against me? What can I do? Any advice or comments will be appreciated.

Voyager2002

What can you do? Either you pay the money (or agree to pay a smaller amount in full and final settlement), or you wait for them to take you to court. They have the right to initiate proceedings now, or at any time until the matter becomes statute-barred.

You have made it clear to the creditor's solicitor that you believe that you have a defence, and that you intend to contest any court action that they might bring. I think it unwise to go into great detail about your defence: save legal arguments for the court: if you discuss the case in detail now, without really knowing the law, you might well say something that destroys your defence without realising it.

Did your "friend" ever explain his failure to pay the rent, and his action in leaving you to deal with the mess? Perhaps you should put your energy into persuading him to pay his debts rather than leaving them for you.

HampshireH

Sounds like a great friend.

We're you contacted by the landlord prior to them instructing solicitors?

Whilst they increased the rent, it sounds like your original agreement was valid. Has your solicitor rejected the idea they can claim for the value of rent you agreed to take responsibility for (just not the difference between old and new rent).

saajan_12

No, you can't force a decision. If they are excessively hounding you, then you could report that and potentially stop the interaction. However calm letters alone are unlikely to rise to this level. 

Either way, the LL or indeed anyone can claim you owe anything, but can only force a recovery via court. You're always effectively always on a 6 year clock to a claim timing out. The presumption is people would want their money so would file a claim when sensible eg when they have the evidence, have exhausted the other options and think they'll be able to recover. 

Realistically your options are (1) ignore the letters and deal with a court claim if and when it arrives; or (2) offer a settlement amount for part of it to end the matter. Which one depends on exactly how strong your defense is - if the guarantee wasn't executed as a deed and witnessed etc, then strong. If its just about the subsequent changes, then I'd wonder if you could be held liable for the rent based on the last agreement you did see. 

eddddy

SanMiguel80 said:

But all they keep doing when replying is fobbing me off, either by replying that they ‘will review this case this week and get back to me’ (that was a month ago), or ‘we are awaiting instructions from our client’ (3 months ago)...

"We are awaiting instructions from our client" probably means...

We've been paid by our client to send you two letters (and maybe to review the guarantor agreement and AST). We've done what we were paid for.

So we won't be doing any more work unless/until our client agrees to pay us to do more work.


So it would be a case of waiting to see if the Landlord
- instructs this solicitor further
- or instructs another solicitor to progress this
- or progresses it themselves without the assistance of a solicitor
- or goes down a different route
- or gives up

For example, the landlord might decide to have another go at getting payment from the tenant. And if that fails, come back and focus on you again.

In the meantime, it's likely that the solicitor will stop replying to you.

PixelPound

Just keep copies of all correspondence, any evidence, etc filed for reference. Unless you want to put a settlement offer to them, next step is up to the Landlord. Either instructs their solicitors to file a claim or decides the chance of success is not worth the costs of pursuing legal action further. 

Solicitors only act under the instruction of their client, not you, so a put up or shut up demand has no bearing. It is now a waiting game, no need for any further communication until you get anything from them. 

bobster2

SanMiguel80 said:

The solicitor initially replied to me as to why they believed that I am still liable, but each time I have been able to refute their counter claims by pointing out to them that their client or their client’s agents failed to follow due process and as a result had invalidated any previous agreement I had with them, and therefore their claim against me was not in accordance with the law and I am therefore no longer liable. Following a consultation with a solicitor, the main basis for myself dismissing their claim is that the LL failed to contact me or obtain my consent for any rent increases above that stipulated in the AST I originally signed and therefore the LL had invalidated any agreement held.

I would recommend being cautious in your correspondence. You say you have consulted a solicitor? Did you not ask them to respond on your behalf?

You're writing here using terms as if you're already in court - only a court can "dismiss their claim".

Whether rent increases invalidate your guarantor agreement entirely - or just liability for rent above the original amount - will depend on the precise wording of the guarantor agreement you signed. 

km1500

just to say what was mentioned above are you absolutely sure that when you sign the guarantor agreement you signed it as a deed.

user1977

If you'd like them to stop demanding money from you, and in fact they have stopped demanding money from you, I'm not sure what the problem is? Why do you want to keep on rattling their cage?

Surely it shouldn't be causing you any worry if you're confident with your advice that they don't have a claim? Why aren't you asking your own solicitor for further advice?

SanMiguel80

Voyager2002 said:

What can you do? Either you pay the money (or agree to pay a smaller amount in full and final settlement), or you wait for them to take you to court. They have the right to initiate proceedings now, or at any time until the matter becomes statute-barred.

You have made it clear to the creditor's solicitor that you believe that you have a defence, and that you intend to contest any court action that they might bring. I think it unwise to go into great detail about your defence: save legal arguments for the court: if you discuss the case in detail now, without really knowing the law, you might well say something that destroys your defence without realising it.

Did your "friend" ever explain his failure to pay the rent, and his action in leaving you to deal with the mess? Perhaps you should put your energy into persuading him to pay his debts rather than leaving them for you.

Many thanks for your wise advice. The former tenant is my step son, unfortunately we had a family fall out over 3 years ago and we had no contact with him from then until after the eviction, and then only by email. We were unaware he had run up rent arrers or that he had been evicted until after the event. He stated he refused to pay the rent increase because the LL increased the rent by more than 25% so he at first only paid the old rent and then no rent at all when they initiated a section 21 eviction. He was evicted 10 months after they imposed the rent increase. I received no contact from either the Letting Agent (LA) or the LL during this time.

noitsnotme

SanMiguel80 said:

Voyager2002 said:

What can you do? Either you pay the money (or agree to pay a smaller amount in full and final settlement), or you wait for them to take you to court. They have the right to initiate proceedings now, or at any time until the matter becomes statute-barred.

You have made it clear to the creditor's solicitor that you believe that you have a defence, and that you intend to contest any court action that they might bring. I think it unwise to go into great detail about your defence: save legal arguments for the court: if you discuss the case in detail now, without really knowing the law, you might well say something that destroys your defence without realising it.

Did your "friend" ever explain his failure to pay the rent, and his action in leaving you to deal with the mess? Perhaps you should put your energy into persuading him to pay his debts rather than leaving them for you.

He was evicted 10 months after they imposed the rent increase. I received no contact from either the Letting Agent (LA) or the LL during this time.

I doubt they were obliged to contact you about ongoing issues during those 10 months.  As guarantor you are only there to chase for the debt if the tenant doesn’t pay it.  They would try and exhaust all efforts on trying to make the tenant pay first, before contacting the guarantor.