Desperate Help Needed - Guarantor For Tenancy Agreement

[MRSKAS]

Back in September 2006 I signed as a guarantor for a tenancy agreement. This was for my girlfriends daughter, which in November 2006 we fell out. I asked the agents then if I could pull out of being a guarantor, to which they replied 'oh please don't'. I said I wanted to and they said they could not find the contract that I signed. I went into them for the next 4 days, but they couldn't find it and said they would ring me when they do. After not hearing from them I sent them a letter saying that I wanted to pull out of the agreement, they have said that they never received this letter. Recently I have been told that the ex-girlfriends daughter (miss X) is 3 months in arrears and I am liable to pay. I haven't got the money after going through a tricky divorce and my mortgage payments are now to the hilts....but I have read different things on websites with regards to the contract. Firstly it does not mention the word 'Deed' anywhere....secondly it has not been witnessed......thirdly, I did say to them at the time that I would be a guarantor for 6 months only, although I have not got that in writing. Would someone please look at the wording of the agreement set below (excluding any names) to see if you can guide me on how I stand, as they say they are taking me to court.

Assured Shorthold Tenancy Agreement
Date
20th Sept 2006
The Landlord
XXXXXXXXXXXXXXX
(This is the Landlord's address for service of notices until the Tenant is notified of a different address)
The Tenant
+
Miss X
The Guarantor
Me
The Landlord agrees that the Tenant may live in the house/flat/room known as
XXXXXXXXXXXXXXXXXX
(the Property) for as long as the tenancy lasts. The Tenant agrees to live in the Property, pay the
agreed Rent and keep to the Tenant's Obligations, listed below.
The Tenancy includes the furniture and other items (Contents) which are set out on the attached list.
This tenancy starts on 25TH September 2006
and will be for a period of 6 month and (if neither party has given the other a valid notice to
end the tenancy on or after the end of the fixed period) it will continue month to month until
ended by either party giving the other valid notice to end the tenancy. To be a valid a notice
must comply with Clause 4.5.
The Rent is £575-00 per month. The Rent is payable in advance on the
25th day of each month. The first payment is due on the start date of this Agreement.
The Amount of deposit is £862.50
The Tenant's Obligations·
The tenant agrees with the Landlord:
1.1 Rent
To PAY the Rent on the Payment Date.
1.2 Deposit
To pay to the Landlord the Deposit on the date of this Agreement as security for any loss or damage
caused by the breach of any of the Tenant's obligations in this Agreement.
1.3 Interest
To pay interest at the Interest Rate on any sums paid more than seven days late .
1.4 Outgoings
To pay all outgoings for the Property during the tenancy. Outgoings include Council Tax, standing
charges and bills for gas, electricity, telephone, water and sewage disposal and any other services
supplied to the Property.
1.5 Repairs
To keep the Property and the Contents in good repair and clean condition during the tenancy
but the Tenant does not have to carry out repairs which arc the Landlord's responsibility
under Clause 2.2 (see next page).
The Tenant must replace any items lost or damaged during lhe tenancy with similar items of similar
value.
To make sure that the chimneys are swept and the drains, gutters and pipes in the Property arc kept
clean. If there is a garden, the Tenant must keep it neat and tidy.
To report to the Landlord promptly any damage or defect affecting the Property or the water or heating
systems.
1.6 Alterations
Not to make any alterations to the Property or do anything which might make the Landlords insurance
policy invalid or which might increase the amount of the insurance premium. (The Landlord will, on
rcceiving a written request, let the Tenant see the relevantterms of any insurance policy)
1.7 Use as a private home only
To use the property only as a private home for the Tenant and his or her immediate family to live in.
The Tenant must not assign or sublet the Property or take in any lodgers or paying guests or carry on any
trade or business at or from the Property.
1.8 Not to cause a nuisance
Not to keep pets in the Property without the Landlord's written permission.
Not todo or keep anything in the Property which might be a nuisance or which might annoy the
Landlord or any neighbours or which might cause damage to the property.
1.9 Landlord's right to inspect
To allow the Landlord, or anyone who has the landlord's permission, to do any of the
following at any reasonable time after giving reasonable notice:
• to read the meters;
• to inspect the Property;
• to show other possible tenants or buyers around the Property
• to carry out any work on the Property or on any adjoining premises which the Landlord owns or
occupies.
If the Landlord gives notice to the Tenant that the Property has faults which are the Tenant's
responsibility the Tenant must put those faults right immediately.
1.10 Leaving the Property at the end or the Tenancy
To leave the Property and the Contents at the end of the Tenancy in the repair and condition required by
Clause 1.5 (see above).
1.11 Rules and regulations
To comply with any roles and regulations made by the Landlord or his or her agent from time
to time for the proper management or improvement of the Property or any nearby property.
Where possible the Landlord will discuss any new roles and regulations with the Tenant
before they are introduced and will take reasonable account of the Tenant's view.
1.12 To make good
To make good any loss or damage caused by the breach of any of the Tenant's obligations in
this Agreement. '
1.13 Notices
To give the Landlord promptly any notice or other document or communication relating to
the Property or any nearby property which the Tenant may receive .
The Landlord's Obligation
2.1 The Landlord agrees that, providing the Tenant does not breach any of his or her obligations
in this Agreement, the Tenant may live in the Property without unreasonable interruption from
the Landlord.
2.2 The Landlord will so far as required by law keep in repair and working order:
• the main structure and outside parts of the Property
the systems for the supply ofgas, electricity, water and drainage;
• heating and hot water instal1ations.
2.3 The Landlord will repay the Deposit to the Tenant without interest within one month after the
tenancy ends aslong as the Tenant has not broken any of his or her obligations .However , the
Landlord may deduct from the Deposit a reasonable sum as compensation for any loss or
damage caused by any breach of any of the Tenant's obligations. If before the end of the
Tenancy, the Landlord uses the Deposit (or part) to pay for loss or damage caused by any breach
On the Tenant's obligations, the Tenant must, within seven days of being asked to do so by the
Landlord, pay to the landlord a sum which will restore the Deposit to its original amount.
3 Guarantor
If there is a Guarantor, he or she guarantees that the Tenant will keep to his or her obligations
In this agreement. The Landlord can ask the Guarantor to pay any amount the Tenant owes.
4 Other Provisions
The landlord can bring the tenancy to an end and take the Property back if at anytime:
· The rent is unpaid for 14 days after it becomes due: And/or
· the Tenant has broken any of his or her obligations in this Agreement; and
· the Landlord gives to the Tenant written notice that he or she intends to seek to take back
the property.
4.2 Where this Agreement has been signed by more than one person, each named tenant is
responsible for all of the obligations in this Agreement.
4.3 For stamp duty purposes, the Landlord and Tenant confirm that there is no previous
agreement to which this Agreement gives effect.
4.4 If the Landlord owns or occupies any adjoining or nearby premises then all rights of access
And services to and from those premises are reserved.
4.5 The Landlord and Tenant agree that:
• written notice must be given to end the tenancy;
• the notice must be at least two months if given by the Landlord and at least one month if
given by the Tenant;
• Written notice must be given; however the notice cannot end the tenancy before the last
day of the Fixed Period.
· If the Fixed Period has ended when the notice is given, the notice must end the tenancy on
the last day of a period of the tenancy.
5 Additional Provisions (if any)
5.1 The landlord can obtain possession during the fixed term of the tenancy using
grounds 8 and 10 to 15 in schedule 2 of the Housing Act 1988 should the tenant default on
the tenancy .
Landlord's Signature Signed
Witness's Signature Unsigned
Tenant's Signature Signed
Tenant’s (Tenant has been crossed out and Guarantor written in) Signature Signed
Tenant's Signature Unsigned
Tenant's Signature Unsigned
Witness's Signature Unsigned
Guarantor's Signature Unsigned
Witness's Signature Unsigned

[rory32]

I have removed your 2 other threads on this. Please keep to one thread per topic. This is both for your benefit and for those giving you advice on your situation.

[Pebble]

The contract, which you have quoted, we presume this is a copy your have eventually been able to extract from the agent?

You mention about a deed, we presume you are referring to a guarantor deed, which is usually signed by the guarantor once you have seen sight of the tenancy agreement?

The contract that was drawn in September 06 and expires March 07. Thereafter if it was not renewed it has been running on a periodic basis. It does state, that after the fixed term expiry of the contract, that it will run on. The clause for the guarantor then, defines that you will pay the rental (in the case of the tenants default) on this agreement.

It does not specify what happens to the guarantor’s obligations on any subsequent renewal, or variation thereof? So it could be argued that your liability was discharged after the first period. Albeit, that you have most probably read and signed the contract which clearly states that the tenant would remain in the tenancy until such time notice was served by either party.

Did you sign any other paperwork? We acknowledge that you wrote to the agent requesting your name to be removed. Obviously the agent would not encourage you to rescind this. Any guarantee should only be discharged at the end of any current rental period, with the consent of the agent and landlord and tenant in writing.

The other thing to take into consideration here is that did the landlord or agent acting for you contact you about the position with arrears. Three months arrears do not appear over night. They do have responsibility to keep you updated, were you copies into any correspondence that was exchanged. Also, if she is 3 months in arrears, we presume the landlord or agent has served a section 8 notice, plus a section 21(under a periodic basis) to determine the tenancy?

As the last thing you want, is them holding you responsible for further accrued arrears. If they have not served notice, it could be argued that any future arrears are not down to you. As the landlord/agent missed their window of opportunity to serve notice.

Hope this helps

Regards

Pebble

[Aequitas]

There is certainly an argument worth pursuing that a guarantee needs to be made by deed since there is no consideration passing between the guarantor and the landlord.

If that fails, I think there is also an argument that the terms of the guarantee are a little vague, but that may not get you very far.

If the guarantee is enforceable, then it does apply to the tenancy created by the agreement and that includes the periodic tenancy that came into effect when the fixed term ended. If your understanding was that you were only guaranteeing the fixed term, you need to prove it. Against that, the courts have a tendency to assist guarantors where the terms of the guarantee are not clear. A strict reading of the guarantee makes you liable for rent owed after the fixed term comes to an end, but this is not obvious from the guarantee clause. The Unfair Terms in Consumer Contracts Regulations (or indeed some other law) may ride to the rescue. As I say, the courts like to be convinced that a guarantor knew exactly what he was getting into.

Finally, and this should be a clincher if it applies, if the rent has gone up and you did not agree to the increase, you are released from the guarantee as the terms of the contract have been changed.

[MRSKAS]

Thanks for your replies.

Firstly, as far as I can remember I didn't sign anything else. At the time they only showed me one bit of paper which was where I signed. It all seemed unprofessional to me at the time because it was just a blank A4 piece of paper typed with me to sign, I didn't see the other pieces of paper which they have now copied to me. I said to them that I would honour it for 6 months and they didn't show me any other paperwork that said any different. I know in a court of law that is just one word against another.
Secondly, I do not know if the rent has gone up because I am not in contact with my ex or her daughter. I did try contacting them but they didn't want to know.
Thirdly, it was only this week that they contacted me about the arrears, I have not had any other communication with them in form of letters or phone calls.
My final question as well is what will happen if I cannot afford it. After just finishing a messy divorce I am now mortgaged to the hilt and cannot afford another penny. Are they able to take my house away, as I didn't sign anything against my house, and they didn't even ask me at the time if I was a house owner.

[tomterm8]

Originally Posted by MRSKAS

Thanks for your replies.
...

My final question as well is what will happen if I cannot afford it. After just finishing a messy divorce I am now mortgaged to the hilt and cannot afford another penny. Are they able to take my house away, as I didn't sign anything against my house, and they didn't even ask me at the time if I was a house owner.

While I am not an expert at tenancy law, in terms of debt - assuming the contract is enforceable, and a CCJ is granted ( a big if) then most likely they might either ask for an installment order - specifying how much you must pay a month (based on your disposable income) OR a charging order which secures the debt against your house. If a charging order was granted, this would not mean that your home would automatically be reposessed, in most cases it means that you pay installments every month AND if you sell the house, your equity would go to paying off the debt.

[Aequitas]

As a first step ask if the rent has gone up. When you have the answer to that, come back and let us know.

[MRSKAS]

I have an appointment with a solicitor a week on Wednesday and I have been told not to say anything until I speak to her. I will keep you posted as to what she says. Thank you for all your replies and assistance.