Taking a student to court.

[raydetinu]

remind me was this ajoint tenancy, i.e. one cotract signed by all or individual contracts?

If joint then spreading the shortfall on the remaining tenants would be logical.

It would then be up to the remaining tenants to get the money from the abscoding tenant.

[Dotty50]

My penny's worth....

 

With regards to the bailiff, it doesn't matter that you guys / your parents are jointly liable. If the CCJ is against the former tenants parents, then they are the only people who can be pursued with that warrant.

 

The LL will need an additional (successful) claim against the other liable parties (you and your flat-mates) to enforce against you.

 

The bailiff will of course tell you otherwise.

 

The bailiff has no business visiting an address where the debtor has known to have fled. Is his premature departure not the entire basis of the claim?

 

Sorry, you have lost me? The bailiffs were instructed by the landlord but the guarantor has now applied to get the ccj set aside. No one has called at the student house, why would they? Guarantor doesn't live there!

 

Perhaps you have read too many threads, a terrible habit of mine!

[Dotty50]

remind me was this ajoint tenancy, i.e. one cotract signed by all or individual contracts?

If joint then spreading the shortfall on the remaining tenants would be logical.

It would then be up to the remaining tenants to get the money from the abscoding tenant.

 

Yes that's correct ray, I know it is logical to split it for the remaining months, it's just that it leaves no comeback for the landlord to do anything further to pursue the guarantor for the rest but I also feel that he has obtained a guarantor who doesn't have the ability to pay which is very unfair with this type of contract and we did have to pay fees upfront for checks to be made.

 

I think it is unlikely that we will get any money from the errant student but at least a ccj will give them problems for a few years!

[Dotty50]

I have been looking at MCOL today with a view to preparing the claim and sending the student a copy of what he can expect if doesn't make any effort to contact us to resolve this situation.

 

The query I have is now do you put more than one claimant in? It appears that you can only register as an individual?

 

Or do we have to do it by post instead, which will cost more in fees?

[raydetinu]

I believe you can name more than one defendant, but only one person can make a cliam, however check with the court.

[Dotty50]

Ah that's given me more to think about!

 

The total amount has been shared equally amongst the remaining students so if there can only be one claimant, then each student will need to issue a claim for their share.

 

I hadn't looked at it that way before, I just issue one claim for myself and the others can follow suit?

 

The errant student then ends up with the possibility of 4 ccj's! Seems a it harsh but then so is walking away leaving a debt in excess of £3k!

[Dotty50]

I have called the court and they tell me that you can have more than one claimant but they didn't deal with MCOL, only paper claims so I have emailed MCOL to see what they say.

 

Thanks again for your posts Ray, I do wonder where all the legal experts are, I think I am in the legal forum?

 

I would like to get some opinions on the parental guarantee and whether the landlord has been neglectful in taking a guarantee of someone who does not have the ability fulfill it, they do not own a property and may get away with it if they can get the ccj set aside! Are there many grounds available to get it set aside?

[raydetinu]

Probably will get it set aside because guarantor form, not a legal binding document!

I have signed guarantor foms for my children, but would have no intention of paying out if asked, even tho checks were made on me as being suitable. ( forms are not legal or enforceable)

[Dotty50]

I think I will await the outcome of the hearing and see what the landlord has to say after this.

 

If it is set aside due to an invalid guarantee, then no way will I be paying anymore towards the absconding tenants rent and I doubt the other parents will want to either!

 

Trouble is, if it does get set aside on these grounds, I doubt the landlord would be very free with this information!

[Dotty50]

prelim letter with deletions.doc

 

In the meantime, I have drafted this in preparation.

 

If you are around Caro, perhaps I could take up your very kind offer of taking a look please?

[caro]

I've made a few changes, the important one being the deadline of when you expect this to be dealt with.

 

Dear x & x

Further to my emails dated x/x/x and x/x/x/, I have not received any response or attempt to the situation of the outstanding rent for (put address here), or making any proposal or arrangement to pay us.

Please accept this letter as a preliminary notice of our intention to pursue the total outstanding amount, via the County Court.

You signed a joint and several tenancy agreement dated x/x/x to pay the monthly rent for (Property add) of £XXXX between yourself, (other students named here) for a 12month period up to and including x/x/ 2011 with the guarantee of your (relationship and guarantor’s name)

You moved out on x/x/ 2010 without notice to any of the other tenants, handing the keys back to the landlord and paying rent due up to and including x/x/x.

Whilst every effort has been made to secure a replacement tenant, we have been unable to do so and therefore we have had to pay the outstanding rent for (dates covered so far) and will also have to cover the future payments due from (dates to be covered) inclusive.

As previously advised, the sum paid so far is £xxxx and the total due at the end of the tenancy will be £xxxxx , therefore we will issue a claim for the total due under the agreement. Should this be necessary we will also be claiming interest of 8% interest from the date of payments we’ve paid, to date of settlement, plus court costs.

I would add that this is the last course of action we would wish to take but in the absence of any communication with you, we feel that there is no alternative. I hope it won’t be necessary, and look forward to an early resolution of this problem.

If we do not hear from you in 14 days from the date of this letter, we will send a final letter before action in a final attempt to resolve the matter and avoiding the need to waste court time and further expense.

(This letter to be sent by email and by post).

 

Make sure you get and keep proof of postage which costs nothing.

[Dotty50]

Hi, thanks for your time Caro, I will make the amendments and get it ready to send.

 

Just normal 1st class and get a certificate of posting?

[caro]

Yep unless you feel compelled to spend extra on posting it.

[Dotty50]

I will hopefully find out what happened with the set aside application by the guarantor this weekend.

[Ed999]

Hi Dotty,

 

I duly received your S.O.S. on another thread, and here I am. Please could you clarify which of the many legal issues in this long runner you want me to consider, perhaps by summarising briefly what you believe the present situation to be?

 

I am still considering the points made by the judge in the other thread, at the hearing mentioned by user The Carpet Cleaners, in his post of yesterday, which need to be carefully considered: not easy, when the poster himself didn't understand the legal implications of what the judge was saying!

 

So I'm not commenting on guarantors' liability at present. Maybe in a few days. But happy to comment on other aspects in the meanwhile.

[Dotty50]

Hi Ed,

 

Thanks for looking in and offering assistance.

 

We have a joint and several 12 month AST all students have a parental guarantee.

 

One student moved out after 4 months without any notice to the others and simply hands keys back to the landlord, the landlord advised in writing that the liability remains with that student unless a replacement is found.

 

The landlord can be quite aggressive at times, however I managed to convince him that he should sue the guarantor of the student in question as opposed to the whole group of guarantors. He did this, however the guarantor has written to the landlord advising that they cannot afford to pay! The landlord, once again threatened the other guarantors with immediate legal action should we not pay up the outstanding rent for the missing student (4 months rent at this point) so we agreed reluctantly to pay and have also paid the missing proportion for May.

 

The other guarantor has, in the meantime applied for a set aside and the landlord couldn't attend but advised the court that the amount of the claim was no longer outstanding. (In hindsight, perhaps we should have awaited the outcome of this, before paying, but none of us wanted to have a claim issued against us and I have no doubt that the landlord would have issued quickly). I am expecting to have the result of the set aside application next week as the landlord has been away.

 

I have read on here that guarantees should be signed as a deed and witnessed otherwise they are not worth the paper they are written on, however a solicitor has advised that this isn't necessarily so, but it would cost in the region of £300 for it to be looked into.

 

I am considering issuing a claim against the student, if only to get them to realise that they cannot just walk away from a legally binding contract. I have written to both student and parent and they have not replied and am planning on sending the letter in post 61 and see if they respond, before issuing a letter before action.

 

I was also wondering if the landlord can issue a claim for the same amount, when a ccj has already been obtained for it?

 

The amount will be in excess of £3000 by the end of the tenancy, so not a trivial amount.

[Ed999]

A student share with a 12 month joint and several AST all students in the house have parental guarantees.

 

One student moved out mid term, landlord has secured a CCJ on the parent of this student. (according to the LL) and is now saying that as it has not been paid, action will be taken against the remaining tenants.

 

Questions are: -

 

Should the LL still approach remaining tenants for the outstanding rent? If a ccj has been secured, then shouldn't the LL pursue for payment via the court?

 

If the remaining tenants cover the shortfall and the ccj is also pursued, then the LL could effectively be getting it paid twice, can we get any details from court?

 

Is it possible to find out if a ccj has been secured through the court?

 

 

My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

Bear in mind that if you are a shorthold tenant, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the initial six months ends (expiring on the last day of a rent period). No reason has to be given. Where a dispute arises, concerning any matter, the landlord can simply end the tenancy in that way.

 

 

Joint Tenancies

 

This is a type of tenancy that landlords of shared properties like. All the sharers sign one joint agreement, and are thereby all bound by its terms and conditions.

 

One consequence of this is ‘joint and several liability’. This means that each tenant is liable for ALL the rent due under the agreement. If any tenant stops paying his part of the rent, the landlord can sue ANY tenant for those rent arrears, not merely the one who failed to pay. So you should think carefully about the financial creditworthiness of your potential housemates.

 

The benefit of a joint tenancy is that you are actually getting a tenancy; so you have the rights of a tenant, including the important right to refuse the landlord permission to enter the building (for, by law, his only statutory right of entry is in order to carry out repairs: he needs your permission to enter for all other purposes).

 

 

Otherwise, sharing a single dwelling among strangers does not create a tenancy, only a licence.

 

If the occupiers are NOT tenants:

 

a. they are NOT protected by the Housing Act, so the landlord does not have to give 2 months notice of eviction under section 21: a mere lodger, or licensee, can be evicted by being given 4 weeks written notice in the form prescribed under the Protection From Eviction Act 1977; and

 

b. they are NOT protected by the Tenancy Deposit Scheme, which only applies to shorthold tenancies, if they do not have a tenancy. The TDS scheme does not apply to licences.

 

 

Guarantors

 

If suing both the tenant and the guarantor, the landlord will have to establish liability against the tenant in order to give rise to liability on the part of the guarantor.

 

A guarantee of this type is normally invalid unless in a deed, i.e. under seal and witnessed, because only a contract by deed is exempt from the legal requirement for all parties to a contract to provide monetary or other consideration. The guarantor will not usually have paid consideration money, so only a guarantee by deed will be binding on him.

 

 

A claim against a guarantor typically fails for either of two reasons -

 

a. the landlord fails to establish liability against the tenant (and because the guarantor is effectively indemnifying the tenant, if the tenant is not liable then neither is the guarantor); or

 

b. the guarantee is invalid because it is not given in a deed, i.e. under seal and witnessed (a contract by deed is the only type of contract which is exempt from the legal requirement that all parties to a contract must provide monetary or other consideration; and as a guarantor will not normally have given consideration, only a guarantee by deed will usually be binding on him).

 

Thus if the guarantee is contained in the tenancy agreement, that agreement itself must be a deed.

 

However, there is an extensive body of case law which allows guarantors many, many other common-law defences (for example, the guarantee is invalidated if the landlord does anything to make the tenant's obligations different, such as allowing the late payment of rent on even a single occasion).

 

 

The tenant needs advice from a Solicitor on the complex legal issues raised by the law of guarantee: such as whether a guarantee is valid if it is not given in a deed, i.e. under seal and witnessed; and whether this particular guarantee actually covers the disrepair that is being alleged by the landlord; and whether the guarantor has any legal liability prior to a judgement being obtained against the tenant.

 

 

A contract is legally binding only if consideration - usually, but not always, in the form of a money payment - is given. A party to the contract typically gives money, but a guarantor rarely does so, which is one reason why guarantees are a legal minefield.

 

The contract of guarantee is entirely seperate from the tenancy contract. The former is legally binding only if consideration is provided by the guarantor. If no consideration was given by the guarantor, the contract of guarantee can only be valid if it is contained in a deed, because a deed is the only form of contract that is exempt from the requirement for consideration.

 

The first point for the court to decide in relation to the guarantee is therefore whether there was consideration given by the guarantor. If there was none, the next question is whether the guarantee was given by deed, i.e. in a document signed, sealed, and witnessed.

 

If the claim against the guarantor is struck out that probably will NOT affect the validity of any claim brought, now or in the future, against the tenant for the alleged disrepair.

 

 

The guarantee is automatically cancelled if a new tenancy agreement is signed, or if the terms of the existing tenancy agreement are changed (for example, if the rent is increased). In both cases you need the guarantor to sign a new guarantee deed.

 

The logic for this is that the guarantor can only be held responsible for the tenant's liabilities under the terms of the particular tenancy agreement which the guarantor has agreed to guarantee.

 

 

Recent Court decision

 

It has been suggested on another thread that the requirement for a contract of guarantee to be made by deed, if no consideration is given by the guarantor, is being repealled in 2011; and that a mere signed letter can now be classed as a promise to pay.

 

I have so far been unable to confirm either point.

[Ed999]

Questions are: -

 

Should the LL still approach remaining tenants for the outstanding rent? If a ccj has been secured, then shouldn't the LL pursue for payment via the court?

 

 

Each tenant is liable for all outstanding rent, on all of the flats / apartments covered by the tenancy agreement, as explained above. The landlord can pursue any one of them, all of them, or a few of them, at his sole choice. And he can try one, then sue another if the first turns out to be unable to pay.

 

For the reasons explained above, a guarantor has greater legal protection than a mere tenant, so there is a greater chance of a case failing against a parent as guarantor. If so, the landlord still has a lot of tenants and other guarantors who he can try suing.

 

 

If the remaining tenants cover the shortfall and the ccj is also pursued, then the LL could effectively be getting it paid twice, can we get any details from court?

 

 

Payments under a judgement or order CANNOT be paid to the court. All payents MUST be made to the landlord / claimant. The Court does NOT have a record of the amounts paid under the judgement debt, so cannot answer a question of this type. It is for the tenants to take proper care to ensure that the correct amounts are paid.

 

 

Is it possible to fnd out if a ccj has been secured through the court?

 

 

The question is meaningless. If judgement was given in favour of the landlord, and remained unpaid after 30 days, an automatic entry will have been made in the Register of County Court Judgements, under the name of the losing defendant in the case. This entry can ONLY be removed if the landlord signs a certificate to the effect that full payment of the judgement debt was made by the defendant within 30 days of the judgement being granted.

[Ed999]

Perhaps the most important thing I can tell you is that it is open to YOU to re-let the empty flat to a new tenant.

 

 

I have read on here that guarantees should be signed as a deed and witnessed otherwise they are not worth the paper they are written on, however a solicitor has advised that this isn't necessarily so, but it would cost in the region of £300 for it to be looked into.

 

 

It would be money wasted. For the reasons I have summarised, a claim against a guarantor can fail for many different reasons, and if it fails then the rest of the tenants are left holding the baby. As you are not interested in helping the guarantor avoid liability, it is counter-productive to research legal methods of a guarantor defeating a landlord's claim.

 

 

I am considering issuing a claim against the student, if only to get them to realise that they cannot just walk away from a legally binding contract. I have written to both student and parent and they have not replied and am planning on sending the letter in post 61 and see if they respond, before issuing a letter before action.

 

 

You cannot sue the defaulting student, unless you personally are sued by the landlord. In the latter case, you could sue the student for an indemnity or contribution - as a third party claim within the landlord's case against you. But the student owes the rent to the landlord, not to you. So you can't sue the student yourself.

 

ALL the tenants - and all the guarantors - are in the same position as you in this respect.

[Dotty50]

Hi Ed, thanks for your input.

 

The guarantor issue, whilst confusing, I think I get the gist of what you are saying and agree, the cost of getting a solicitor involved is really not worth it.

 

However, you state in the last paragraph that we (the remaining tenants or guarantors) cannot sue the defaulting tenant because they owed the money to the landlord, not us.

 

If we have paid the landlord the share of the missing rent then I don't understand why we can't pursue the debt from the defaulting tenant.

[raydetinu]

You can, but after the LL has sued you or you have paid the LL on the students behailf ( as per contract ). Then you can take student to court to recover your costs.

[Dotty50]

Thanks Ray, that's what I thought and plan to do.

 

One of the things I need to find out is whether I can issue the claim on behalf of the students and guarantors? I know if I use MCOL there can only be one claimant and two defendants and it's just easier to do it online than fill in a paper application.

[raydetinu]

I think you can have muliplr claimants as you all want an equal share,but not sure about on line though; suggest you speak to the court.

[Dotty50]

Yes I did confirm this with the court Ray.

 

What I need to know, if you have any idea, is can I do the claim in my name on behalf of the others, as their representative?

 

If the students issue the claim and they have to go to any hearings, it will mean them taking time out of their course which isn't very practical.

 

I will have a look on the court website, I guess it should cover this question

[raydetinu]

I believe you can; may need to get a legal document drawn up that you a representing all and they sign and agree to abide by ruling so they then cant start their own seperate action if you loose.