Notice given to 3 tenants for whom I am the guarantor

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  • Notice given to 3 tenants for whom I am the guarantor

    Hi

    2 years ago I assisted my now ex-gf in finding a property to rent along with two friends who were also looking.

    As a favor I acted as a guarantor for all three to ensure that nobody lost out to a place to live.

    A year later I broke up with my then gf and continued to live my life etc... recently I found out that the two friends have now left, one remains in the UK and the other in Malaysia. However they did not inform the letting agent of this and instead my ex-gf subletted the rooms and had deposits haned from new tenants which she handed to the two previous tenants.

    She has contacted me now after so long to say that notice is being served on the property. She is worried that because she has realised that the other two deposits will not be paid back to her.

    Is it within the letting agents rights to keep the deposits unless the original two tenants return and sign for them. Who is entitled to what and am I as the guarantor responsible for any of this?

  • #2
    Were the deposits protected in a scheme?
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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    • #3
      Originally posted by Bobby_nahal View Post
      Hi

      2 years ago I assisted my now ex-gf in finding a property to rent along with two friends who were also looking.

      As a favor I acted as a guarantor for all three to ensure that nobody lost out to a place to live.

      A year later I broke up with my then gf and continued to live my life etc... recently I found out that the two friends have now left, one remains in the UK and the other in Malaysia. However they did not inform the letting agent of this and instead my ex-gf subletted the rooms and had deposits haned from new tenants which she handed to the two previous tenants.

      She has contacted me now after so long to say that notice is being served on the property. She is worried that because she has realised that the other two deposits will not be paid back to her.

      Is it within the letting agents rights to keep the deposits unless the original two tenants return and sign for them. Who is entitled to what and am I as the guarantor responsible for any of this?
      Presuming the tenancy started after April 2007, and the deposits were duly 'protected' by the agency, then the deposit will be returned to whoever is shown as having paid it - usually the 'lead tenant' - often the 1st person on the tenancy agreement.

      If there is rent unpaid, or damage that is not covered by the deposit, then you may be liable. Tenancy agreements often have the phrase "all have joint and several liability" when refering to tenants responsibility, which basically means GF can be held responsible for everything. As guarantor that means you can be too.

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      • #4
        lead tenant

        I was there when all three signed the agreement and there was no mention of a lead tenant.

        All three handed their deposits individually and signed the contract individually.

        Is it reasonable for the landlord to hold back the two ex tenants deposit and insist they come and claim them back themselves.

        Comment


        • #5
          Originally posted by Bobby_nahal View Post
          Hi

          2 years ago I assisted my now ex-gf in finding a property to rent along with two friends who were also looking.

          As a favor I acted as a guarantor for all three to ensure that nobody lost out to a place to live.

          A year later I broke up with my then gf and continued to live my life etc... recently I found out that the two friends have now left, one remains in the UK and the other in Malaysia. However they did not inform the letting agent of this and instead my ex-gf subletted the rooms and had deposits haned from new tenants which she handed to the two previous tenants.

          She has contacted me now after so long to say that notice is being served on the property. She is worried that because she has realised that the other two deposits will not be paid back to her.
          Is the tenancy an Assured Shorthold Tenancy (in England/Wales)? If so, the agent or landlord should have protected the deposit. Did this happen and if so who is named as the lead tenant?

          Is it within the letting agents rights to keep the deposits unless the original two tenants return and sign for them.
          What happens next depends on the answer to the above question.

          Who is entitled to what and am I as the guarantor responsible for any of this?
          You are only liable for unpaid rent or things such as damage caused by the tenant. You are not responsible for ensuring GF (or anyone else) gets their deposit back.

          The tenants who departed are probably still liable for unpaid rent/damage even though they left, as it sounds as if their tenancy was never formally ended. The replacement 'tenants' are probably lodgers technically-speaking, unless they have been paying rent direct to the landlord/agent.

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          • #6
            From what I remember it is an assured shortheld tenancy which was originally for 6 months and has not been renewed but more "rolled on"

            The deposit I can not know for certain without checking myself with letting agent whether it was held under deposit scheme. It is a respectable letting agent so for now I will assume it was held in a scheme.

            What is the scenario for my exgf in both cases? Does it make a difference?

            I also do not know who the lead tenant is, if anyone it would be my exgf due to her being the first to sign a contract and being the main contact at the property.

            I am not concerned too much about what my exgf gets back I am more worried about me losing out in someway. Since she has asked for my advice though I will try my best.

            The 2 replacement tenants are paying their sum of the rent direct to my exgf who then pays the letting agent before in person but now i think my bank transfer. They have not signed anything on paper except maybe some agreement about rent and term with my exgf.

            Hope that helps and so far thanks alot for your help

            Comment


            • #7
              Originally posted by Bobby_nahal View Post
              The deposit I can not know for certain without checking myself with letting agent whether it was held under deposit scheme. It is a respectable letting agent so for now I will assume it was held in a scheme.
              No, don't assume. If A will not tell you, contact each of the three schemes and ask them if they hold the deposits in question.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

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              • #8
                Thanks Jeffrey took your advice and contacted the letting agent, as they are aware of me, and they have told me that she is the "lead tenant" also that the original contract was for 6 months assured shortheld tenancy. Also that the deposit is held in a deposit scheme.

                Also the agent mentioned to me that the main tenant (exgf) has contacted them stating one of the fridges is broken and she will not pay the months rent until it is fixed. Who is liable to fix the fridge regardless of blame? As it appears that one of the lodgers has damaged it.

                They are still planning to give notice end of november.

                Although there is a lead tenant the 3 x deposits were paid individually and signed for individually by the 3 original tenants, 2 of them as I have stated have since left and been replaced by 'lodgers' who are subletting off the lead tenant.

                I hope nobody minds me altering my orignal post.

                If lead tenant was to hold the rent what actions can the letting agent take. I assume they can keep the deposits but even though this amounts to the total months rent they would as most agents do want to charge cleaning as the property and carpets are quite dirty.

                DO they have the power to enter the property and remove the lodgers at any point or remove their belongings?

                Also as originally queried can the letting agent refuse to pay the other 2 deposits back to the lead tenant?
                I am the guarantor on all three original tenants.

                Comment


                • #9
                  Originally posted by Bobby_nahal View Post

                  Also the agent mentioned to me that the main tenant (exgf) has contacted them stating one of the fridges is broken and she will not pay the months rent until it is fixed. Who is liable to fix the fridge regardless of blame? As it appears that one of the lodgers has damaged it.
                  There is no statutory obligation by LL to fix the fridge. It may be a provision in the tenancy agreement for the LL to take responsibility for such appliances, however, it's not "regardless of blame"; if the breakage was caused by the tenant (or tenant's friends/lodgers/visitors etc) then the tenant, not the LL, would be liable.

                  If it's the case that the lodger broke the fridge, then what is likely to happen is that the cost of repair plus the withheld rent will be claimed from the deposit.

                  If lead tenant was to hold the rent what actions can the letting agent take. I assume they can keep the deposits but even though this amounts to the total months rent they would as most agents do want to charge cleaning as the property and carpets are quite dirty.
                  The agent/LL cannot arbitrarily decide to make deductions. These must be agreed with the tenant. If there is a dispute, it will be decided either by the scheme's adjudication or by the courts. If the damage/rent arrears exceed the deposit, then it is possible the LL will pursue the tenants, or you as guarantor, for the debt.

                  DO they have the power to enter the property and remove the lodgers at any point or remove their belongings?
                  No. The LL would have to obtain a court order for possession against the tenant and only then could a bailiff be engaged to physically remove any occupants/belongings. However, your exgf could evict the lodgers easily if she wished.

                  Also as originally queried can the letting agent refuse to pay the other 2 deposits back to the lead tenant?
                  I don't know as I've never had a deposit dispute with a scheme and joint tenants. It's possible that the lead tenant, your exgf, may be able to act on behalf of the absent tenants in claiming the deposit back. Call the scheme and ask.

                  Comment


                  • #10
                    thats great help and alot of useful information.

                    I am hoping it does not get to the point of myself as a guarantor having to be chased.

                    I have been reading other posts on s21 notices.

                    What is the legal notice period, one month or two?

                    Since the lead tenant has subletted the property without notifying the letting agent would there be a clause in the tenancy agreement against this and therefore saying since the contract is broken deposit will be held or is this again dependent on the scheme and what they say.
                    Just another angle i am trying to cover.

                    Do the lodgers still have any rights to remain in the property at all, even within the notice period? I would have thought if the letting agent wished he could change the locks and hand one key to the lead tenant and ask the lodgers to vacate there and then as they should not be there?

                    Comment


                    • #11
                      Originally posted by Bobby_nahal View Post
                      I have been reading other posts on s21 notices.

                      What is the legal notice period, one month or two?
                      The period for a s.21 Notice is always at least two months. The exact period depends on whether L is using s.21(1)(b) or s.21(4)(a).
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                      • #12
                        This thread is raising more questions that can be answered.

                        1. L must serve 2 months Notice and T 1 month, to end at the end of a rental period.
                        2. Letting agent cannot change locks.
                        3. Lodgers have no right of occupation, but only the T can ask them to leave as he/she is the legal person in possession.
                        4. If L wishes to regain possession then after the service of a valid S.21 Notice if occupants/tenants fail to move on expiry then he must apply to the court under the Accelerated Possession Procedure.
                        The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

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