UK Landlord Forum / Life

My tenant moved into my property in 2008.  Had a lot of trouble getting ££ from her in 2014 so I asked her to leave
Her parents then paid the outstanding debt but I still wasn't happy for her to stay so they/she offered her parents as guarantors
I now learn that the form they signed wasn't a deed

She stopped paying rent in May 2018 ....it took 6 months to get her out and £2500 in solicitors fees
I warned the parents by registered letter in August and November about the outstanding rent etc and told them I would be making a claim in the small claims court which I did

Their defence is that the guarantor wasn't asked for at the beginning of the tenancy and that the signed guarantee wasn't a DEED...which is true ..sadly

Is there any point in pursuing this to court now ..... I'm gutted but it's a lot of money to just write off to lack of knowledge. Any thoughts pls

What sort of form did they sign,who drew it up?  I don't think the fact that they were not guarantors from day 1 would in itself be a problem.It is my understanding that regardless of the nature of the contract,guarantor agreements are not worth the paper they are written on.It still comes down to the integrity of the other party.I have taken on 2 people in the past with guarantors,and would never do so again.

Guarantee really needs to be a deed to be enforceable.

If the words on the agreement stated "guarantee and indemnity" then it might still have effect (depends on the remainder of the agreement) but other than that not much hope.

It was just a note that said they guaranteed any outstanding rent for the property etc
Signed by both parents

Seems like I was just too STUPID to think that people who give guarantees for their daughter would honour them !!!

Not Stupid... maybe a little overly trustful.

Don’t beat yourself up over other people’s lack of integrity.
Learn and move on ...

Thanks

Quote from: Zoozan on February 16, 2019, 07:46:19 PMSeems like I was just too STUPID to think that people who give guarantees for their daughter would honour them !!!

Honour. Could be a concept of yesteryear. I know some people still live by it, and everyone probably claims they do. But you can easily see how anyone can sign up to anything before the tenancy (when it's needed for things to happen) and then get out of it - even if on a technicality - at the end, when it's all gone wrong. So, yes, a bit too stupid, a bit too trusting... but (as we have said to many a person coming here) if you're able to spin it around inside your brain as an expensive course / learning exercise, then you'll certainly not make the same mistake again. Whatever... you shouldn't feel badly about being taken advantage of... and always try to realise the folk responsible for the Guarantee could've been fed all sorts of nonsense about how bad you, and the property, were during the tenancy, and in their heads it's now a form of justice... or just desserts.

Mmmm, dessert.

Can anyone tell me if there is any reason not to carry onto at least mediation ?

As I'm going to lose the court case as the guarantee isn't a " deed "
As apart from time and petrol I believe I won't lose anymore ££

So just for the sheer hell of it.........??

You see I AM honourable and perhaps naive    But that's the way I was brought up and have always lived my life and I find this really really wrong

So ....what do you think?

No reason.

Could be a nice day out.

Presumably you could still issue a claim against your erstwhile tenant as she's liable for the rent in the first instance. Whilst she might not have the means to pay herself, it might encourage her parents to do the honourable thing and bail her out, if only because, with a big, fat undischarged CCJ on her record, she'll struggle to find new accommodation and will likely end up boomeranging back to their house. Bang goes the empty nest!

Yes,that could work,scare the bejesus out of the old dears.

Ok another query. Same subject

Why does a guarantee have to be in the form of a deed

Why can't I call my signed piece of paper a Contract of Guarantee .........


Any thoughts?

To be valid, a contract requires (among other things) there to be consideration to be valid. Depending on how the guarantee is drafted, some have concern that there's no valid consideration in a guarantee. Better safe than sorry.

Yep understand but this was 5 years ago

As KTC says, it's about "consideration" which essentially means there has to be something in it for both parties to an ordinary contract.


E.g.

I agree to pay you rent. In return I get a roof over my head.

Vs:

I agree to pay someone else's rent if they default. In return I get nothing but a warm fuzzy feeling inside.

Quote from: Simon Pambin on February 22, 2019, 01:31:12 PM
I agree to pay someone else's rent if they default. In return I get nothing but a warm fuzzy feeling inside.

I agree to pay someone else's rent if they default, in return you agree to grant them the tenancy in question MAY be okay. However in OP's case, the tenancy already existed, so can't even argue that. 

Hi all....just thought you would like to know that I have just returned from the Courts and I have in fact won my claim
The contract of guarantee was fine.......!
Of course I won't be getting the ££ back very quickly but ..... I won !!

Oh Wow!! I am so pleased for you. It almost restores my faith in the justice system.Enjoy.

Thanks
I haven't got the official write up yet but basically judge said guarantees date back to Finance Act of 1667 (?) not to the 1980+(??) as a DEED is used in the conveyance of land NOT as a guarantee etc

I think you mean 1677 Statute of Frauds not the Finance Act.
The main is issue is as KTC stated whether there was any "consideration" (something given) in return for the guarantee. 

It's not always considered nothing (if it was nothing then a deed would be needed) but I can't think what it is, given the facts you provided.

I'd be super interested to see the full analysis, maybe there is something in the contract or the parties relationship that you haven't mentioned as it doesn't seem important to you...(it happens a lot).

Please do post again.

Happy days for you....

How a court case goes does very much depends on how it is argued. The Statute of Frauds bit just mean that the guarantee have to be in writing, and a different bit of law mean that the consideration in any contract of guarantee doesn't have to be in writing despite the Statute of Frauds. If the defendant didn't argue it, the court aren't going to worry about it generally speaking. Similar would be any arguments possibly under consumer protection law, unfair terms etc. And of course, the court aren't always right, that's why there's appeals.

But it works out here for OP, so great news there.