Guarantor (or not) - reassurance required

[Nimrod205]

Background

My daughter is a tenant in a shared house on a (joint) AST which runs from July2011 until June 2012. Unusually, the landlord required a new AST agreement (From July 2012 until June 2013) to be signed by the 3 tenants already in December 2011. I signed as guarantor for my daughter for both tenancy agreements based upon the fact that she was receiving a maintenance grant from Student Finance.

 

She was never provided with a copy of the tenancy agreement in either case. In January this year, she decided (for a number of reasons) to drop out of Uni and moved out of the house. Over the last 5 months she has found a number of potential replacement tenants that have all been (initially) approved by the other 2 tenants only to have them rejected at the last moment without any reasons being given.

 

Two of her potential tenants were even given viewings by the landlord who then recommended them to the others but these were also rejected without any reasons being given. My daughter has religiously paid the rent over the last 5 months but cannot afford to pay any more as she is now an apprentice on a very low income. The landlord has stated that he cannot take sides or show favour to anyone and has said (quite rightly) that cooperation is needed. Unfortunately, all attempts by my daughter to make contact by telephone or email receive no reply.

 

They are holding her to ransom and this cannot continue. The landlord has made no efforts to mediate or to help in finding a new tenant. The landlord is now chasing me for the unpaid rent for June 2012.

 

Due to these events, I started to research my liability as guarantor. Here are the facts as they pertain to me.

 

1. The landlord sent guarantor "forms" for me to sign. They simply state that I agree to stand guarantor for my daughter and to pay any rent or costs from a breach of the Tenancy Agreement . They are not deeds and only contain the address of the rental property. Only my daughters name is mentioned and there is nothing mentioned about how much the rent is.

 

2. No accompanying letters (requiring me to study the tenancy agreement) were sent and the only copy of a tenancy agreement I have ever seen is one I requested from the landlord on the 1st June this year.

 

3. The landlord maintains that there is a "template" tenancy agreement on his website and this is sufficient for me to have seen what my responsibilities were.

 

4. The CAB have advised me not to pay but it was not a solicitor who provided the advice.

 

I would simply like to know where I stand and if I have a reasonable defence if this ever comes to the small claims court.

 

Thanks in advance for any advice you can give.

Edited June 20, 2012 by citizenB

[Steve__M]

Assuming that the tenancy was "joint and several" it is a shame that the other two tenants were not informed that they were jointly liable for the rent should your daughter default as they may have been more inclined to be reasonable. Certainly I don't understand why other tenants were allowed to reject people - people should have been given a key and a sub-contract from your daughter and that could have been it.

 

My understanding is the same as yours, that the guarantee is unenforceable unless it is a deed or unless you are party to the tenancy. Obviously, your daughter remains jointly liable along with the other two tenants.

[cleveland1]

Nimrod205 hi

Am no legal expert but have been fight a land lord for the last 5 years in the courts. As far as the law goes there is no actual law pertaining to that of a Guarantor. There is no legislation act of parliament call it what you want pertaining to that of a Guarantor. If the land lord takes you to court for the sums owed the case will be heard under contract law.

Under contract law the guarantor has no rights what so ever other then to pay. The section you signed on the contract would be a very small part of the contract. You sign it agree to pay the default sums owed to the landlord. In many way it is a financial agreement, but it is not regulated because there is no law.

So if you end up in court these two maxims should come in handy. Maxims are the most powerful laws going, and not even a bent judge can go against them.

These maxims are taken from blacks law dictionary volume 9 you have both the Latin and English translation

Nihil quod est contra rationem est licitum – Nothing that is against reason is lawful.

If you can get hold of statements from the tenants you tried to get to take over the tenancy. You will need to do some digging as you need to know why they were refused.

Ubi non est lex, ibi non est transgression quoad mundum – Where there is not a law, there is not a transgression, as far as this world is concerned.

This is the best one. As i’ve said before there is not law pertaining to that of a guarantor even though in many ways it is a financial agreement. So the above maxim will raise heads in the court. For if there was a law pertaining to that of a guarantor. Then a guarantor would have rights that protect him like the tenant does.

Now am no legal expert as i’ve stated before.

I have experience of fighting such a case but mine was with a commercial landlord and dealing with 5 figure sums. Thus far ive had a charge on my property removed and am back in court in the next few months to have the case heard all over again.

Best of luck with it mate will offer any help i can.

Regards

cleveland

Edited June 20, 2012 by citizenB

[citizenB]

I have flagged your thread to see if Site team have any idea.

[rebel11]

Have you tried contacting Shelter, no.15 in my signature.

[Steve__M]

As a notalawyer, my understanding is that the guarantor is often not party to the contract - ie. they do not sign the contract. They sign only the guarantee.

 

I heard it say on a legal website that if they have been asked to sign the contract then the guarantee may be enforced.

 

But the reason they are often not included in the contract is because that for a contract to be formed, the guarantor has to gain some benefit from the contract (standard contract law).

 

Often, though, the main point of these discussions is that by arguing a good case with the LL (on the basis of the law as well as justice of the case), the LL can be dissuaded from taking further action! The chance of LL taking further action over one month's rent may already be quite small.

[citizenB]

http://www.lettingfocus.com/pages/myarticles_Guarantorsintenancyagreements.html

[raydetinu]

That as noted above is how I understand it to be as well.

But would add that not only should the guarantor be given the AST and terms, but the actual amounts and costs should be listed in the actual Deed.

If there ANY changes to the AST i.e. rent increase or a new AST signed then you will need a new Deed. The originla being invalid.

Cleveland1 - Commercial guarantees and gurantees for loans are different as they usually form part of or are incorporated in the original agreement and signed as such by the parties and the gurantor.

[jaffro]

the link that citizenB has put up is very interesting as it has some bearing on my own stuation

[Nimrod205]

Just want to say thanks for the responses. Next stop is a visit to Shelter before the fun starts.