I'm Guarantor: I Need Out!

[Ashiro]

I decided to sign as guarantor for someone because they were family. Unfortunately my sense of duty has blinded me because they've reneged on payments and now the housing benifits office won't pay the full rent due each month - because the valuer didn't believe it merited it.

I want out and I want rid of all this. I'm frantically looking for the guarantor agreement but can't find it - I'm writing for a copy to be sent. I did find a letter saying that my guarantee includes all future agreement extensions - I don't want this. Okay - I know I may not be able to cut this short but I want to at least stop it continuing past the original 6mth agreement!

Also - I've heard mention that I can remove my guarantee - with the tenant then needing to get out or find a new guarantor. I'm willing to do this. The family member can go to hell as far as I'm concerned (there's more personal reasons to this story btw).

I understand guarantor statements are locked down to the hilt so I know I can't escape entirely unscathed if it goes pear shaped but I do want damage limitation.

Please help - I went through hell as a student with debts and I don't want my life being turned upside down again by some vindictive b**tard.

[Aequitas]

I am not aware of any right to get out of an "extended" guarantee.

Have a look at the following thread as it discusses various points about guarantees some of which may be of relevance to your case:

JustClaim :: View topic - dodgy landlord and guarantee document

[waterbottle]

I found the above link fascinating.

Why does a guarantor agreement without consideration still remain a valid contract? Perhaps the consideration is the benefit to the tenant?

Does anyone know if this 'guarantor as deed only' has been tested?

Also, in the above thread the judge said that, in respect of the guarantor agreement:

'The terms as laid out in the document were too narrow to be effective.'

Can someone explain this for me? I would have thought that a narrow contract would have been ideal. e.g. I give you this, I get that.

[Aequitas]

First, when you have a deed, no consideration is needed. So, if a guarantee is made by deed the question of consideration does not need to be addressed.

I am unable to quote any authority that says that a deed is essential. I have raised the point on other forums and no one has come up with an answer. As I do not live in the UK I am unable to check the point. You may want to go to your local reference library and consult Halsbury's Laws of England.

When a court looks at a guarantee it will want to be sure that its terms are clearly set out; any doubts will be resolved in favour of the guarantor and that may lead to the whole thing being unravelled.

But the courts often go beyond the terms. Even if the guarantee is clearly worded (and made by deed) they will want to look at the circumstances in which the guarantee was given. Did the guarantor have the effect of signing the guarantee explained? Was the guarantor misled in any way? Was the guarantor advised to take legal advice or given time to consider? Did the guarantor in fact take legal advice? Is the guarantor a professional person?

There are many permutations. A badly worded guarantee signed by your maiden aunt who was dragged along to to the agent and had it thrust in front of her, was hardly given a chance to read it and was told "Don't worry dear" is unlikely to be enforced. On the other a hand an accountant who signs a well-drafted guarantee on which he took legal advice is unlikely to be let off the hook.

[Conniff]

I would tell the landlord that you are not in a position to pay the rent arrears and request he start the eviction process

[waterbottle]

I remember reading on this site a debate about being guarantor. The upshot was that you could cancel your guarantor status in as much time as it was reasonable for the LL to get a new tenant.

Sorry if that is confusing. There is, in law, a presumption against a continuing guarantor.

I think this meant that if you inform the LL of your wish to cancel, you should consider yourself free of the guarantee as soon as the LL could theoretically, using any means, get the tenant out.

Does that make sense? Basically, once you have informed the LL of your decision, the clock is ticking for him.

Can someone who is more efficient than me find this previous thread? I will search for it too!

[waterbottle]

I remembered this post from last year. The poster was Josie8 and the thread's title was 'help urgently needed' in the lettings section. Sorry, I don;t know how to make this type of link.

The answer is that you can always revoke a guarantor agreement and the key term is 'reasonable notice'. Read on for more details.


Its ok have found answer and I can revoke guarantee

In law, there is a presumption against a continuing guarantee. A guarantee will, prima facie, be construed as applying only to the contractual fixed term and not to any statutory extension under the Housing Act 1988. As a consequence, the answer to this question will depend on the wording of the guarantor agreement and the individual circumstances of the case. The guarantor will not normally be permitted to withdraw his guarantee during the contractual fixed term of the tenancy unless the guarantee contains a termination provision (allowing the guarantor to withdraw on say two months' notice). The guarantor, as with the tenant, will be bound to the end of the fixed term of the tenancy. Equally, if the landlord has granted an additional contractual term as an extension to the tenancy and the guarantor has agreed to this, then the guarantee will normally continue and remain valid for the duration of the additional term. What if the tenancy has become periodic ? In this case, provided that the guarantor has agreed to the extension either expressly, or pursuant to a relevant provision in the guarantee (the agreement can be worded in such a way as to include statutory periodic extensions of the original fixed term), then the nature of the guarantee becomes continuous and this is an important distinction. Generally, the law considers that the right of cancellation is an inherent characteristic of a continuing guarantee. This means that a guarantor may seek to revoke such a guarantee. The guarantor may revoke his guarantee by giving appropriate and reasonable notice. If the guarantee does not contain provisions for termination by the guarantor then, if necessary, the courts would make their own interpretation of 'reasonable notice'. Clearly this will depend on the individual facts but it is unlikely that in the case of a rent guarantee, immediate notice would be held to be reasonable given that the landlord is unable to terminate the underlying contract (i.e. the tenancy) with immediate effect (see Wingfield v De St Croix, 1919). There is little modern case law in this area to guide us on the length of reasonable notice but it is likely that the court would consider this to be the quickest period in which the landlord could obtain possession, acting with due diligence. For this reason, it is preferable for landlords to let under successive fixed term tenancies when a guarantor is involved, remembering to renew the guarantor agreement each time the tenancy is extended or the rent increased. Use of periodic tenancies can ultimately result in the guarantor having a right to revoke and the various uncertainties described above.