Help urgently needed

[Josie8]

Hi

six years ago in I personally guaranteed my brothers rental agreement so he could be housed. I also paid the first 6 months money in full at the time.

In the meantime we have fallen out and I have received a nitice from landlord today issuing a formal demand for £1800.00. They are making no attempt to evict him and say they will just keep asking me for the money indefinitely............. ..Is this right? Do I have to fund my brothers rental costs for the rest of his life or does the landlord have a duty to evict the tenant for non payment?:o :o :o :o

[Joa]

The guarantor can be and will be pursued by the landlords for outstanding rent payments and the landlords are not obliged to start eviction proceedings.
You are responsible for the rent in absence of payments from your brother. If your brother is difficult to nab, the landlord will unfailingly go for you. You can only negotiate with your landlords to show him it would be in his interest to evict asap so the rent arrears will not keep accruing. Discourage him from the idea that he will get money easily from you; explain that you will only be able to pay small instalments, etc so he doesn't think, oh, no problem, the tenant dosn't pay but the guarantor is loaded. That way he will try to gain the possession of the property and try to re-let it as quickly as possible.
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[Josie8]

Yes but I've been searching the web and reference has been made to case law which allows a guarantor to give notice of withdrawal of guarantee after nthe initial 6 month period............but can't find the case name or other details........would you know if that the case?

[Josie8]

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.

[Joa]

Ok, so back to checking paperwork. Have you still got documents? If not, ask the landlord to provide you with a copy. Just don't tell him why you need it! Say that your accountant wants to see it

[Josie8]

Will do - plus they say in notice they're enclosing a copy of the Rent Account but they haven't.......so guess I'll have to tell them that too.......

[Esio Trot]

Originally Posted by Josie8

Hi

six years ago in I personally guaranteed my brothers rental agreement so he could be housed. I also paid the first 6 months money in full at the time.

In the meantime we have fallen out and I have received a nitice from landlord today issuing a formal demand for £1800.00. They are making no attempt to evict him and say they will just keep asking me for the money indefinitely............. ..Is this right? Do I have to fund my brothers rental costs for the rest of his life or does the landlord have a duty to evict the tenant for non payment?:o :o :o :o

The landlord cannot get rid of the tenant without a court order. You can though, however this does have some risk, particularly if the tenant is home and resists physically!

This is the only sure way to bring your commitment to an end quickly.

[Joa]

The landlord cannot get rid of the tenant without a court order. You can though

Esio; can you expand on that? How can a guarantor "get rid" of the tenant?

[caledfwlch]

Originally Posted by Joa

Esio; can you expand on that? How can a guarantor "get rid" of the tenant?

I suspect through illegal methods of eviction which would probably land you in court for theft, breaking and entering and who knows what else.

Not good advice to follow I suspect.

[Joa]

hmm, that's why I wanted to know as I am not aware personally of any tactics that guarantor could use lawfully to bring the tenancy to it's end. I simply cannot imagine any. I think Josie did an excellent piece of research on this caselaw and would be great if she could follow it.

[Josie8]

well have written requesting agreenent, guarantee, subsequent agreement & any other pertinent paperwork . Sent it Special Delivery

[caledfwlch]

It seems to me to be common sense, though as we know common sense doesnt always apply with the Law, that something like a Guarantor would only be for a limited period, ie in the case of a Tenancy, only for the period of the first contract, with a new guarantee being signed if the guarantor is willing at every new contract period. With a Guaranteed Loan for instance, I would expect the guarantors guarantee to last for the entire period of that loan being paid back, as that is what is agreed to, but obviously the law must also protect the guarantor, and I would have thought would recognise that things to change, people fall out etc. Were I to be asked to be a guarantor, I would if it was someone I really trusted agree, but only for the first contract, 6 months or 12 months, essentially signing your soul away for maybe decades just seems wrong, I wouldnt have thought a court would allow that to happen, otherwise ALL Landlords would insist on a guarantor, and the courts would be in chaos. Well... at least almost as much chaos as bank charges are causing hehe.

[Josie8]

Not received anything from Landlords agents yet so have decided to send a letter formally revoking my guarantee if its a non cancellable agreement but stating that by doing this I am not accepting that I am bound by the agreements they've not produced

[Nightmare4banks]

Hi all!

Josie8,I would like to add and to be blunt with you:

1.You need to read the wording of the guarantee.

If you are unsure of anything,just post the content of the guarantee here so we can help you out further.

2.If you go to cancel the guarantee now you could possibly be accused further down the line with seeing that your brother obtained the tenancy by misrepresentation/fraud.Just a thought.

3.However,if the first tenancy with your guarantee expired - the owner should have contacted you to renew the tenancy and guarantee.If the latter did not happen you could potentially argue that you were on the understanding that the guarantee was for the initial tenancy ONLY and that your brother should be able to pay the rent himself or housing benefit pay it if he has financial problems and that he owner should assist your brother in this case and not expect you to pay it.Again just another thought.

I hope you find this information useful.

If you have any questions,just ask.

Keep us posted.

All the best!

[Josie8]

Papers have arrived today. 1st tenancy which I guaranteed was taken out in 02. My signature with landlords etc is on a blank sheet of paper not attached to guarantee. I've signed for this and any renewal or extension of existing tenancy. My brther signed another agreement in 04 with a different landlord (same property) for a higher rent (£50). I didn't sign another guarantee nor was I notified of any changes in agreement etc.

[Esio Trot]

Originally Posted by Josie8

Papers have arrived today. 1st tenancy which I guaranteed was taken out in 02. My signature with landlords etc is on a blank sheet of paper not attached to guarantee. I've signed for this and any renewal or extension of existing tenancy. My brther signed another agreement in 04 with a different landlord (same property) for a higher rent (£50). I didn't sign another guarantee nor was I notified of any changes in agreement etc.

From what you write, you may not be liable.

However, for advice to be more specific you need to scan and post the paperwork (omitting identifying details, of course).

[Josie8]

ok will do later today - paerworks at home and I'm in work but thanks for your help..........