Guarantor not advised of arrears

[rl123]

Hi guys

 

writing for some advice please.

 

My friend who acted as a guarantor on his sons rent has just received a summons from the court asking to pay back all the rent arrears that are owing. over 4 months worth !

 

he was never made aware that there were rent payments being missed until reading it on this court summons. Does he have any rights to contest this as surely he should have been made awaer as soon as the arrears where mouting up ?

 

Any advice would really be appreciated as he is now worrying like mad.

 

Regards

[palomino]

Unfortunately that is a matter between his son and himself. He has signed up as guarantor and is now being called to honour that guarantee.

 

You are correct that he should have been made aware that the rent was in arrears - but the only person who is responsible for this is his son. I expect the son will shortly be getting right rollicking.

 

It does appear that the landlord is going for the big guns straight. Your friend has a right to feel aggrieved at not being asked to honour the guarantee before court action was taken. Perhaps mail about this was sent to the son who neglected to pass it on.

 

I suspect your friend doesn't have sufficient cash available to pay what is owed.

[rl123]

Thank you, whilst browsing on the web i found this, does this apply?

 

Chapter V. Liability And Rights Of The Guarantor. Section 44. Contract Of Guaranty

 

The distinctions between the contract of the surety and the guarantor have already been observed in section four of this text, and it will be remembered that the guarantor's contract is both a collateral one, and also a secondary one to the principal's contract, the guarantor's promise usually amounting to this, that he will answer for the principal's default, provided the principal does not respond, and the creditor observe the rule of due diligence, the use of which the creditor is bound to undertake in accordance with the terms of the contract. In addition to this, it may be said the guarantor's contract being a secondary one, it requires a special consideration to support it; the principal's contract is not the guarantor's. The guarantor must therefore have notice of the principal's default, and good faith requires that the creditor who fails to give such notice is acting at his peril. The guarantor can claim a discharge to the extent of the injury he suffers, by reason of failure to receive notice, where the lack of notice of default on the part of the creditor materially affects him in his rights under the contract.

 

 

also read something about a section 17 notice ?

 

i have read somewhere that the landord must serve a section 17 withing 6 mths of the first arrears becoming due, my friend or his son were never served any legal notice does this make any difference.

[rl123]

Thank you, whilst browsing on the web i found this, does this apply?

 

Chapter V. Liability And Rights Of The Guarantor. Section 44. Contract Of Guaranty

 

The distinctions between the contract of the surety and the guarantor have already been observed in section four of this text, and it will be remembered that the guarantor's contract is both a collateral one, and also a secondary one to the principal's contract, the guarantor's promise usually amounting to this, that he will answer for the principal's default, provided the principal does not respond, and the creditor observe the rule of due diligence, the use of which the creditor is bound to undertake in accordance with the terms of the contract. In addition to this, it may be said the guarantor's contract being a secondary one, it requires a special consideration to support it; the principal's contract is not the guarantor's. The guarantor must therefore have notice of the principal's default, and good faith requires that the creditor who fails to give such notice is acting at his peril. The guarantor can claim a discharge to the extent of the injury he suffers, by reason of failure to receive notice, where the lack of notice of default on the part of the creditor materially affects him in his rights under the contract.

 

 

also read something about a section 17 notice ?

 

i have read somewhere that the landord must serve a section 17 withing 6 mths of the first arrears becoming due, my friend or his son were never served any legal notice does this make any difference.

[Steve__M]

If I were in this position, I would review the exact terms of the guarantee. What are they.

 

I believe it has been suggested by someone more knowledgeable than me, that unless guarantees are executed as a deed with a witness, they may not be enforceable. The basis given was that a guarantee cannot be contractual unless the guarantor receives consideration (a benefit from the contract). Consideration is an essential part of a contract.

 

This may be hearsay.

[rl123]

Thank you Steve M, there is not witness signature on the guarantor agreement just his own ?

 

Also they are now trying to get more money for property damage which never occurred and have not returned any of the deposit. No inventory was ever signed so can they legally just take the money.

 

i have just read this can anyone confirm is this correct.

 

3 The tenancy agreement and its obligations - the guarantor must be given ample opportunity to read and question the tenancy agreement on any points he / she does not understand BEFORE the agreement is signed and witnessed. Guarantors MUST have seen and approved the tenancy agreement they are guaranteeing prior to the signing and they must also sign a Deed of Guarantee. This signing should be witnessed.

 

 

on the guarantor paper there is only his signature as it was never witnessed just sent out to him and posted back.

 

Edited January 22, 2009 by rl123
more info to add to my advice