Can LL Sue Guarantor For Any Costs Implementing Eviction Under Section 8?

[Redhead777]

Ladies and gentlemen, thank you for your valuable time. I love the story about 'Captain America' and it makes the point clearly and vividly. Seriously, the problem may be difficult to solve but, thanks to you, I now have a somewhat clearer picture of where I stand. So appreciative.

[jpkeates]

Is it really that unusual? The NRLA model guarantor agreement has clauses which state:

1.1 In consideration of the Landlord’s agreement to let the Rental Property to the Tenant, the Guarantor guarantees the performance by the Tenant to the Landlord of all obligations under the Tenancy Agreement.

I'd say that would only be enforceable if the landlord confirmed that they had read and understood the whole of the tenancy agreement.
And I don't honestly think that even then you could rely on making it stick.

It's too unlimited as quoted to be something you can realistically agree on.

1.2 In consideration of the Landlord’s agreement to let the Rental Property to the Tenant, the Guarantor further agrees to indemnify the Landlord against any loss they incur as a result of letting the Rental Property to the Tenant.

More realistic, but, again, probably too wide in scope.
The loss would have to be reasonably foreseeable.

The tenant moves in, catches a disease, which the landlord catches during a visit and it kills their entire family, ending the son's film career just as he takes on the role of Captain America in three films.
That's some loss to be responsible for.

The landlord shouldn't really incur any costs associated with a successful eviction of a tenant, they'd be the tenant's costs, which the guarantor should already be on the hook for if they default.
That clause would make the guarantor for the landlord's costs if they were unsuccessful in their attempts to evict the tenant they're being a guarantor for.

[DPT57]

Is it really that unusual? The NRLA model guarantor agreement has clauses which state:

1.1 In consideration of the Landlord’s agreement to let the Rental Property to the Tenant, the
Guarantor guarantees the performance by the Tenant to the Landlord of all obligations under the
Tenancy Agreement.
1.2 In consideration of the Landlord’s agreement to let the Rental Property to the Tenant, the
Guarantor further agrees to indemnify the Landlord against any loss they incur as a result of
letting the Rental Property to the Tenant.

I would have thought that would cover a situation where the landlord incurs costs in evicting a tenant because of ASB in breach of the tenancy agreement.

[jpkeates]

OK.
There are a number of things, most of which would only matter if the landlord attempted to obtain compensation in line with the agreement and you didn't pay and it went to court.
These are based on my (not at all expert) opinion, and the judge may decide otherwise if it came to it.

First of all, I think the term is unenforceable as it's not a fair term. You can't agree to be responsible for someone else's behaviour - as long as they're an adult.
If you had chance to read and understand the whole tenancy agreement (and possibly take legal advice), it might be fair.

Secondly, it would be interesting to see what the tenancy agreement actually says about the tenant's behaviour and what they have agreed to (and you might have agreed to).
Just because someone complains doesn't make someone's behaviour anti-social.

Third, tt's possible the whole agreement is void.
To form a contract, which this is, there has to be some kind of consideration, usually an actual payment of some kind.
Hence the best practice of this kind of agreement being a deed (where the rules are different).

Fourth, getting a tenant evicted using anti-social behaviour under s8 isn't easy.
In practice, the court has considerable discretion with this ground, and it usually requires something pretty serious (or intervention by the police or a local authority).
Obviously, I don't know what the tenant has done or is doing, but it would have to be more than simply being a bit annoying.

Finally, unless the landlord has actually served notice (which costs nothing) I suspect that they are using the threats to try and resolve the complaints rather than actually remove the tenant.
It's possible that they tenant is causing the landlord to be in breach of their own lease and that they are, themselved being threatened by the freeholder.

It might be best if the landlord did actually retake possession and evict the tenant - there doesn't appear to be many other realistic outcomes.

[Redhead777]

Have spoken to T repeatedly and exhaustively. Have stayed in contact with LL and LL's letting agent both via telephone and by email. Have contacted local authority on T's behalf. Am accused by LL and his agent of 'doing nothing' although this is evidentially not the case. T borrowed from me, and repaid promptly, money for first month's rent and deposit of one month's rent.

[Redhead777]

Am unaware if it makes any difference to the threats of legal action against me but T has diagnosed mental health difficulties because he is on the autistic spectrum. The health difficulties were made plain to LL and LL's letting agent prior to the commencement of Tenancy.

[jpkeates]

Did you see the tenancy agreement (rather than the guarantor contract) before you signed the guarantor agreement?

Did you pay anything towards the tenancy or the guarantor agreement?

Have you spoken to the tenant about their behaviour?

[Redhead777]

Thank you, jpKeates. With no experience in the field, I did not assume that the statement went beyond 'normal guarantor agreement terms'. It is a contract, rather than a deed. 'Guarantor Agreement for residential lettings'. I saw the contract when signing it. It would seem that I, as G, am responsible to LL for another adult's behaviour. If that is the case, why would anyone choose to become a guarantor?

[jpkeates]

That goes way beyond any normal guarantor agreement terms, you're essentially guaranteeing the tenant's compliance with the terms of the tenancy agreement.

Is the agreement a deed (rather than a contract) and had you seen the tenancy agreement when you signed it?

[Redhead777]

'The Guarantor shall pay and make good to the Landlord on demand all reasonable losses and expenses of the Landlord incurred as a result of default by the tenant in the performance or observance of the Tenant's covenants under the Tenancy Agreement'. LL states T has 'breached terms of tenancy agreement' by anti social behaviour.

[jpkeates]

SComplex, I know.

It isn't complex.
We just need to know what you have guaranteed before we can offer any useful observations.

There is no generic "guarantor liability", everything is contained in the specific agreement you have entered into.

[Redhead777]

Dear ash72, T could not leave as would be homeless. Local Authority cannot help those classed as 'voluntarily homeless' so T advised to keep tenancy until formally evicted. Have contacted LA who told me the same. Thank you.

[Redhead777]

So appreciative of your comments. LL owns flat in building with leaseholders who have different, large letting agency managing property for leaseholders. Other Ts have complained about person for whom I am guarantor. Other Ts agency threatening guarantee's LL with legal proceedings should LL does not evict my guarantee. In turn, LL threatens to pass all legal costs on to me. Complex, I know. There are definitely no rent arrears, damage to property or unpaid bills on part of guarantee T. LL claiming my guarantee has breached tenancy contract because of anti social behaviour and appears determined to use Section 8.

[Hudson01]

As said above there is something not right with all this....... i would ask the person you put your financial assets on the line for what is going on..... really going on.

[Lawcruncher]

As suggested by others, we need some clarification of what the position is. It would also be helpful to see the guarantee. Can you scan it, black out the personal details and post it?