Can I issue a CCJ against 2 people at the same address ?

[Lizzy]

Hi all

 

My tenant an ex student (one of 5) lost his job, spent his HB and ran home to mummy and daddy. Daddy is the guarantor. Nither of them will pay up, the guarantor said his son had issues with the house althouth they have sent 3 meager cheques to pay me off. It is no where near enough, I am confident that they are just trying it on. What I need to know is can I go after the guarantor (father) and the son (tenant) as they both live at the same address now. Or do I have to put just the guarantor on it as I am sure the son (tenant) does not have any money. I would like it against both as the son caused all the trouble.

Can the form say

To

 

Mr Joe Bloggs (guarantor)

Mr Fred Bloggs (tenant)

 

Or should I keep it to the only one is likely to pay ?

 

Thanks for any advice

[BankFodder]

you can proceed against both in the same claim.

Then the please add that bringing the claim is really there to enforce some contractual duty, not simply as a way of venting spleen.

If you have been paid some cheques, then if they have not been paid to you in full and final settlement, then you have a duty to accept them in part payment. If they have been paid in full and final settlement, then you would be wise to write to them and suggest that they let you pay the money in on account in order to minimise the size of the problem outstanding and the size of the claim.

If there are issues with the house, then you should address these properly because these could be used as a counterclaim against you if you bring a court action.

[Lizzy]

The cheques were in full and final settlement so have been returned. The issues with the house had been mostly sorted out and were being worked on when he ran away (the other tenants are fine). The house had been renovated actually with new kitchen, bathroom and central heating they pushed and pushed to move in before the snagging could be done. Our fault for allowing it I guess but he was very happy there until he couldn't pay. It is a long and complicated story after that with the guarantor behaving very badly and calling at the house to set the sofa on fire to prove a non existant point because he couldn't find anything else when he got there. It goes on and on...... I would normally bite the bullet and take the loss but after years of renting to students I have never come across such dispicable behaviour. The father is going to produce the old photographs at court even though the work was done when his son left and he got there. Blackmail is pushing me just that bit too far

 

Like you say I should not vent on the particulars of the claim. Do you suggest something like the tenant did not fulfil his contractual obligations with abandonment of the property and leave it at that ?

[MrShed]

Guarantor agreements can be notoriously tricky to enforce. Can you explain the situation where the guarantor signed, and also the clauses within the guarantor agreement? Was this a joint tenancy (i.e. did all residents sign one agreement)?

[MrShed]

Oh and by the way...I would probably disagree with BF above and say that you CANNOT proceed against both in one claim. I presume (well, hope) that the contractual agreement signed with the guarantor is a seperate agreement to the tenancy agreement? In which case the claim against each is slightly, but materially, different.

[Lizzy]

The guarantor signed the form but not while I was there. In his rant on the phone he agreed he was the gurantor and has sent cheques in his name (I have photo copies). Surly he would have said this earlier and not offered to pay anything. The gurantor form is on the agreement, his name is on the front and the back and is signed as a deed.

 

Each tenant has their own agreement even though they are or were friends.

 

So only issue against the gurantor ?

[Lizzy]

Guarantor section 3.

 

If there is a guarantor, he guarantees that the tenant will keep to his obligations in this agreement. The guarantor agrees to pay on demand to the landlord any money lawfully due to the landlord by the tenant.

[MrShed]

Well that sounds very much as if the guarantor agreement is an integral part of the tenancy agreement itself. Is that correct?

[Lizzy]

Yes it is part of the agreement. It is on the front page under the name of the tenant and it is on the back page for the signatures and it is mentioned in section 3 of the agreement. Of course that part does not have to be filled in if there is not a guarantor.

 

Is this good or bad ?

[MrShed]

In my experience, I would say you will SERIOUSLY struggle to enforce any guarantor agreement that is actually part of the tenancy agreement. To be honest, your best claim here may be against the joint tenants, as they are jointly and severally liable for the rent for the property. However unfair this may seem.

[Lizzy]

Why would a tenancy agreement be flawed in this way ? It is a legal contract and should not be on there if it is not able to be of any use in making a claim, it is not one that I have made up myself. I have had previous advice and been told that I can't ask the others to pay as they EACH have their own agreement and they have nothing to do with each other as they are NOT on the same contract. Advice is conflicting here.

[MrShed]

Ooops my apologies. I thought you said above that they were all on one agreement. I see now I misread.

[MrShed]

Quick question. Were the rent arrears accumulated during the fixed term, or after it and the tenancy had become a rolling contract? Sounds like the former, but just want to make sure.

[MrShed]

And, who prepared this document for you?

[MrShed]

And (sorry) - who witnessed his signature and signed against it to show that they witnessed it?

[Lizzy]

During the fixed term the rent arrears started, Feb & March he left during April. The contract does not end until 31st Aug so I will issue proceedings during Aug as his payment for Aug becomes due on the 1st Aug 2011.

The signature was not witnessed but he is not denying it and I feel all the letters and trying to pay me off confirms it. My solicitor has actually looked at the agreement and never said anything about the signature not being witnessed. I guess because by doing what he has done to get out of paying he wouldn't have done it and just said it's not me.

The agreement is from LawPack, Residential Letting for England and Wales.

The question I asked here about wether or not I can issue a ccj against both of them I never thought to ask him as it was about June I saw him.

[MrShed]

OK. Well then you need to be aware of the following. Sorry, I would bullet point this but formatting is bust. The point of whether he denies it is him or not is irrelevant. A guarantor agreement must be executed as a deed, due to the lack of contractual consideration of being a guarantor. As his signature was not witnessed by an independant third party, the deed was not executed, and hence the guarantor is not bound by the terms within. The reason why normally a guarantor agreement incorporated into the tenancy agreement is void, is because the tenancy agreement is not usually executed as a deed. In this case, the attempt was there, but it was not actually executed as a deed. You can now still proceed to court against him, and hope that he does not raise the deed issue as a defence. If he does, then your case will automatically fail. If he does not, then I would expect one of the first things for any competent judge to do is to establish the validity of the deed in any event. I would also state that the term within that agreement is far too ambiguous and is not specific enough.

[Lizzy]

So you are saying even if the guarantor does not mention the signature not being witnessed the judge will ? and although the guarantor has said he is the guarantor it wont matter ?

 

What do you mean by

I would also state that the term within that agreement is far too ambiguous and is not specific enough.

 

In this case it is even more apparent that it is necessary to issue both with proceedings, why can't this be ?

Thanks for you help by the way.

[MrShed]

You are welcome for the help, its not a problem.

 

I am saying that the judge MAY notice or query this. If he/she does, it would be game over.

 

However, my comment above re: them being joint defendants was as at the time I believed that the two agreements were seperate. As they are the same, you should proceed and file with them both as joint defendants.

 

The fact that he has admitted to being the guarantor will not matter. You cannot have a verbal agreement to be a guarantor, and as such regardless, the guarantor agreement cannot be enforced under any circumstances - unless, of course, the fact that the deed was not executed is overlooked.

 

With regards the term, it is too "catch all" and therefore too vague. It should specify as to what specifically is covered, and should also state whether it is still in force after the fixed term or not (obviously not relevant in this case).

 

For your future reference, you MUST have the guarantor agreement in future signed by the guarantor WITH a witness. Preferably, best practice is to literally go to a solicitors for half an hour for £50 or so, have the solicitor explain to the guarantor exactly what they are signing up for, ensure that they read the tenancy agreement, and have the solicitor sign as a witness and provide a certificate showing that they advised the guarantor on his obligations under the agreement. I realise that this may seem OTT, but when executing a deed it is VITAL that it is done correctly. Otherwise all sorts of loopholes can be found.

 

For your background information, the reason why a guarantor agreement must be a deed is because it cannot be a contract in the traditional sense of the word, as a contract consists of offer/consideration/acceptance. "Consideration" means that both parties "gain from the agreement - e.g. for a purchase of an item, one party gains money and the other gains a wanted item. A guarantor agreement has no such consideration and as such is NOT legally a contract. This also explains why him admitting to being a guarantor matters not one jot.

 

Does that clarify a bit?

[Lizzy]

Thank you the fog is clearing a little.

 

So as you say I can issue a summons against both parties, if it comes to court the guarantor can say I am NOT liable and his part is over. The debt/contractual agreement falls to the tenant (son) if he fails then he is liable and will receive the CCJ if no agreement is made between us ? this is important as I don't want to have to go to court twice. I am hoping that daddy will not want his son to have a CCJ and will pay anyway.

 

Your comments about future agreements is sound but impossible for me to adhear to because I have 21 students each year.

In your opinion is my contract sound as long as the guarantor is witnessed by a 3rd party and is signed as a deed as stated on the contract ?

 

Section 1 of the contract states the tenants obligations

 

1. To pay the rent at the times and in the manner aforesaid.

 

1.1 To pay all charges in respect of any electric, gas, water, telephonic and televisual services used at or supplied to the property and Council Tax or any similar property tax that might be charged in additition to or replacement of it during the term.

 

This may make the vague area of section 3 (Guarantor section) clearer ?

 

Sorry I'm a pest

[MrShed]

Well, a CCJ will be issued if a court rules in your favour. Obviously, it seems relatively clear cut that it will, but nothing is sure at court. Did you attempt to mitigate your loss by re-advertising the room? Has another tenant taken occupancy? All I would say with regards the guidance re further guarantor agreements - hard to adhere to, not impossible. You take the risk that you will not be able to enforce it, but that is your own choice. Are you credit checking the guarantors? In my opinion you need an INDEPENDANT witness as a bare minimum, to witness their signature, and sign themselves. With regards your section 1.1 - are the bills in YOUR name or those of the tenants? Also, it does clarify a little, but I notice a big omission in making the guarantor responsible for any damages at the conclusion of the tenancy.

[Lizzy]

Thanks.

As I have now only been dealing with the father I think I will need to issue the son a LBA to warn him that a summons is on its way ? The room could not be re let because it only had 5 months to go and a new tenant agreement is for a minimum of 6 months, also as it is for students there would not be any to take it as they are all signed to their own contracts.

 

At least having both names on the summons gives a better chance and can't be thrown out of court regards the son.

 

Is the damage you refer to the setting the sofa on fire to try to get their evidence, or general damage that tenants can do ? with this in mind I guess the son is liable dispite who does the damage because he is responsible for who he allows in the house, he at court could say "my dad or mum did it" but if the deed is void he (son) is responsible ?

 

Thanks

[MrShed]

Thats not true - a new tenancy agreement can be any length you want. A section 21 notice cannot be enforced til after 6 months, thats all. I'll reply to the rest of the queries later tonight.

[Lizzy]

In my free half hour with our solicitor. He wrote me a letter to send to the father which I was to copy out. Part of it say's

 

I have now taken legal advice on whether I can re-let the room formerly occupied by your son.

We are committed to a new tenancy of the whole house in September and I am therefore advised that I am not at liberty to re-let the room because of our inability to praise the new occupant with an Assured Shorthold Tenancy.

 

Not good then ?

 

Actually it was my mistake there were 4 months left. If I could not have issued a section 21 and they outstayed their welcome I would have been up the creek without a paddle.

 

Although I only rent to students re the Council Tax and what happened here, the boy loses his job and goes on Housing Benefit which is against the rules of my mortgage to have anyone on HB. Perhaps if he had found someone to take on his remaining months I couldn't have argued with that, not sure re section 21.

Edited July 26, 2011 by Lizzy