Cancelling Guarntor Status

[atbangel]

Good Morning People,

 

I'm new to all of this so please be gentle...

 

I've just signed a guarntor agreement for my sister in law to rent a property. As she was living with me I felt this was the only way she would get outta my house and into her own..

 

I signed this on Friday last week and havent seen a copy of the rental agreement so cannot make head or tails of the Guarmtor Agreement I have.

 

My main concern is that I will soon be moving to America (in 6 months) for work and at this point wish to cease my guarantor status on the property.

 

As she has yet to move into the property, and I have not even seen let alaone read the rental agreement, am I able to response to the letting agent with my own terms for the guarantor ship.

 

Thank you

[MrShed]

A guarantor agreement is a basic contractual agreement, that although is involved in the rental, is a very seperate agreement.

 

Your guarantor agreement will detail all of the requirements under the agreement - the tenancy agreement is not required for this.

 

The simple answer to your question is no, you cannot change the terms of the agreement, and no, you cannot cease your guarantor status - UNLESS the terms of the guarantor agreement state you can (unlikely). You are bound by the contractual agreement you have signed.

[atbangel]

It states on the agreement "It is essential that a copy of the propsed tenancy agreement is attached to the Guarantor Agreement and that the Guarantor is given adequate opportunity to read both documents before signing"

 

This has not been fulfilled. Change anything?

 

Regardless, do you think if i give 6 months notice they will secure another guarntor and release me from this contract?

[wheelergeezer]

You may have a cooling off period like any contract, by I am not sure in the case of a tenancy as if the tenancy has already started (say today) you can hardly unwind everything.

 

If the tenancy has not started your only real possibility ius to fax a signed letter withdrawing your agreement.

[wheelergeezer]

You posted at the same time as me.

 

If that is the case, you have not seen the agreement thus the signature is invalid. However, what is to stop them swearing in court that you were given it at the time?

[MrShed]

Why did you sign it before seeing the TA, especially when that is explicitly stated in the agreement???

 

A 6 month notice would, again, only be acceptable if the terms of the contract allow it.

[atbangel]

Do you think it wise for me to contact the letting agent asking when I will be provided a copy of the tennancy agreement? thus provided evidence if needed that at the point of signing the guantor agreement this was not provided.

 

I'm not wishing to cease guartorship immediately. however i will definately need to in 6 months.

[atbangel]

Why did I sign, other than stupidity...? its Family... i'm sure you can all appreciate that.

 

Thank you all for you views its very helpful

[MrShed]

But its nothing to do with family - you have not signed a contract with your family member.

 

Not saying I wont assist, but you need to be very aware that you have:

a) signed a contract without knowing the full implications of said contract (due to not viewing TA).

b) signed a contract that you knew there was a possibility of you being unable to fulfil said contract.

 

Lessons to learn I think.

 

In any event, the obvious answer is that if you live in the US it doesnt matter if you are still under the agreement or not, they would have no way of enforcing it.

 

Most guarantor agreements tend not to be worth the paper they are written on.

 

Can you post the entire text of the agreement, with personal details scrubbed?

[wheelergeezer]

If it is a 6 month lease, they pay and the lease ends all luvvy duvvy, then no problems, However If it is a 12 month lease or there are any problems - believe me family are the worst - you could well end up wrecking your credit history when you don't pay as a guarantor. The fact you moved to US will not stop them wrecking your credit history.

 

Having a brother who sole £42,000 from me I can assure you that the 'family' bit is the big red flag for me.

[atbangel]

Thank you both again.

 

I've (hopefully) attached a Data Protected copy of the agreement.

 

Sorry to hear what your brother did to you Wheelergeezer...... I truly believe the nicer you are the more hassle you get! I'm too naive and too soft for my own good!!

 

I guess what i'm really hoping for is that I can write a letter to the letting agent and Landlord, that will protect me and my rights and enable me to be release prior to moving to america

[MrShed]

Cant see em properly ...!

[atbangel]

Hope these are easier to view

[Snorkerz]

Your images are too small - maybe you could upload them to some free webspace?

 

However. Under usual circumstances, the only way to stop being a guarantor is for the thing you are guaranteeing to come to an end - ie the tenant moves out (or, depending on the wording of the guarantee, that agreement comes to an end).

 

I would add though, that if you were taken to court for this your defence could well be that you didn't see the tenancy agreement, and also, it doesn't appear to have been executed as a deed. If this is so, you could also argue that the contract was invalid as there was no consideration (payment) made to you for your part of the agreement.

[atbangel]

http://atbangel.fileave.com/PAGE 1.jpg

http://atbangel.fileave.com/PAGE 2.jpg

http://atbangel.fileave.com/PAGE 3 FINAL.jpg

 

Agreement

[Snorkerz]

Great, having looked at the last page, it has definately not been executed as a deed, therefre you would have a reasonable chance of defending any claim against you.

[Aequitas]

There seem to be 3 questions here:

 

1. Does a guarantee need to be a deed?

 

So far as I am aware there is no decided case on the point. The suggestion that an absence of consideration is fatal is on the face of it a good argument, but there may be counter-arguments. In any event, the payment of a nominal consideration by the landlord to the guarantor would seem to obviate the need for a guarantee to be a deed.

 

2.If you do not see the agreement your are guaranteeing are you bound by the guarantee?

 

The basic rule is that if you sign document A and it refers to document B, which is essential to make sense of document A, you are deemed to be fixed with knowledge of document B. If document A is a deed and it says you have seen document B then the position is even clearer since an "estoppel by deed" arises; that is a rule of law that says you cannot deny the truth of a statement in a deed on which the other party relies.

 

However, whilst it is not quite true to say that special rules apply to guarantees in the sense that you can find them listed anywhere, the courts always look carefully at guarantees given by individuals guaranteeing arrangements under which they derive no benefit. The law does not prevent people entering into such guarantees any more than it prevents then from giving all or part of their wealth away, but the court will consider the circumstances in which the guarantee was signed, the terms of the guarantee and whether the guarantor fully understood what he was letting himself in for. Accordingly, if someone guarantees the performance of an agreement he has not seen, or at least been afforded the opportunity to see, any claim under the guarantee may fail whatever the guarantee says. In this case the preliminary notes say that the agreement must be produced and that has to strengthen the case of a guarantor who has not in fact seen it.

 

3. Assuming it is enforceable, can you unilaterally get out of the guarantee?

 

The guarantee clearly applies for the length of the fixed term. Clause 7 appears at first glance to give the guarantor the opportunity to withdraw once the tenancy goes periodic, but the guarantor is only released if the tenant vacates, so there is really no practical possibility of being released at all and the clause is of no benefit. Since the clause gives with one hand and takes back with the other and is in any event rather badly drafted, there is an argument that the clause should be read with the second part (from "subject to.." onwards) omitted.