small claims court.

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    small claims court.

    I am in the process of preparing a defence for my husband, who will be defending a claim being brought against him by our sons ex LL to be heard in the small claims court. My husband signed as guarantor.

    questions to anyone who may be able to advise.

    1. Can I submit witness statements,from people who will not be attending the hearing? (havn't got this far yet, just covering the eventuality)

    2. Will I be able to present the case for the defence on behalf of my husband?

    3. If I do present the defence, will that mean that I can't be a witness? (again, at this moment I don't think that anything I have to say has any bearing on the defence, so hypothetical at this stage)

    4. I have researched the legal procedure involved regarding the signing of rent guarantees as best as I can, this site has been extremely useful in that matter. However, I have not been able to find anything laid out in a legal format that supports the view that the guarantor must be presented with a copy of the AST agreement before, or at the signing of the document. Can anybody point me in the right direction?

    I believe there is enough evidence to disprove the validity of the document but every little helps. Although I am a LL myself, up to now, I have never had to go to court and frankly I am very very nervous. I want to get it right.

    Thanks for reading

    #2
    If your husband signed as guarantor then presumably he knew what he was doing and was willing to accept responsibility on behalf of your son. Why are you now looking for a legal loophole? From what you have told us so far this does not seem very honourable. As a LL yourself how would you feel if a guarantor tried to wriggle out of his responsibilities in this way? No wonder you are nervous.
    Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

    Comment


      #3
      1. You can certainly send in witness statements but you will be expected to present those witnesses to court for questioning - failure to do so will reduce the validity and impact of what they say in their statement.

      2. You can ask the court if you can act as a McKenzie friend for your husband if you both feel that you can speak better for him. You need to ask the courts permission before the hearing and possibly again at the hearing.

      3. You cannot both be a witness and a McKenzie friend.

      4. I cannot find it as a legal requirement that the AST must be shown to the guarantor before or at the time of signing though it is recommended. I think that a guarantor agreement or contract would succeed in being held if the person signing was absolutely clear as to what he was signing and that the guarantee document did not refer to another document which the guarantor had not seen. However, if the guarantor has signed (on a term within the guarantee document) to say that he has seen a copy of the agreement which he is guaranteeing, then it is no good now saying that he had not seen it!

      What exactly is the defence?

      Comment


        #4
        law student,

        There is much more to this claim than is outlined here. I asked simple questions I didn't ask for your comments regarding whether we should defend the LL's claim or not, a solicitor has already done that for us thankyou.

        We are not looking for a legal loophole. If you are a lawstudent perhaps you should learn not to make assumptions without being in possession of all of the facts.

        I am understandbly nervous, I have never been to court in my life and I don't particularly want to go now. However, as you will probably be well aware, almost anybody can take a claim to small claims court, you take your chances.

        Comment


          #5
          Thankyou DJB

          The defence in the first instance is that the Rent Payment Guarantee is not a deed...........simple contract.....no consideration between landlord and guarantor etc., Solicitor doesn't think that this will hold, but he suggested we enter it.

          Secondly, two solicitors have looked at the document and both say that it was only valid for the first AST agreement. The wording is very specific and both say that the guarantor cannot be held to any subsequent agreements. My husband was responsible for the first fixed term and for the time between AST agreements when the tenancy was periodic, a period of nearly two years.

          Thirdly, the guarantee does not outline any other obligations other than to guarantee non payment of rent, in other words, it is too narrow to effectively cover everything the LL is after.

          LL is claiming a considerable amount for redecoration costs, an astronomic amount, you would not believe how much. This just because she didn't like the colour in the kitchen and bathroom(all newly painted before the tenants left) there is no mention of damage, just this preference for different colours.There was no inventory either.

          The LL is claiming that the tenants were obliged to stay in the property to the end of the S21 notice.

          Most of her claim relates to the tenants leaving before the end of the S21 and for redecorating costs.

          I'm just trying to cover every angle

          Comment


            #6
            Was the S21 served during a fixed term or a periodic tenancy?
            Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

            Comment


              #7
              The tenancy was periodic and it is the correct S21

              Comment


                #8
                Let me see if I have got this correct.

                An AST was created for an initial period which your husband guaranteed.

                That AST then ran out and became periodic.

                Then a new AST was drawn up signed and performed (i.e. rent paid over in accordance with the doctrine of consideration and performance) and your husband DID NOT sign a new guarantee for this new AST?

                If I have got that right, then unless the guarantee form expressly provided for it top guarantee future tenancy periods, then the guarantee, in my view, and the liability therefrom came to an end as soon as the original AST ran out.

                On your statements, it looks like the landlord is trying it on.

                Be sure that you follow carefully and written directions the court give you as to witnesses, statements, evidence bundles and time limits. If you get stuck, approach the court for PROCEDURAL ADVICE ONLY - they will not give you legal advice. If you want to remain as a witness - see if you can get a friend to act as the McKenzie man to help your husband present the case - then you can adduce your own knowledge as witness.

                Obtain witness summonses at the appropriate time to secure the attendance of any witness UNLESS the other side concede and agree that witness's statement at which point in court they are estopped from denying its contents.

                If you decide to be the McKenzie friend, be sure that your presentation does not include your own evidence as a witness because the judge will not allow that to go on.

                Comment


                  #9
                  Originally posted by davidjohnbutton
                  Let me see if I have got this correct.

                  An AST was created for an initial period which your husband guaranteed.

                  That AST then ran out and became period .
                  When the AST became an aspt then if there would be no guarantee, then you have nothing to worry about and any decent CCJ will strike the LL claim out.For once I tend to agree with DJB on this one. My only doubt here would be in the wording of the original AST i.e if there is no determination of the tenancy then the terms and conditions are the same etc. Ref S20 HA 1996" replacement tenancy" on coming to the end of a fixed/inital term.
                  Disclaimer:I have over 30 years experience in housing(both social and private) as an EHO and Building Surveyor.I am also a certified expert witness having spent the last 15years working in housing litigation.The advice I give is from experience in working for various Local Authorities and how the law is interpretated.Housing Law is a minefield and is continually being amended if in any doubt you should consult a solicitor or someone of equal legal standing.

                  Comment


                    #10
                    Originally posted by cris/c
                    <snip>1. Can I submit witness statements,from people who will not be attending the hearing? (havn't got this far yet, just covering the eventuality) <snip>
                    See new thread concerning Affidavits
                    Vic - wicked landlord
                    Any advice or suggestions given in my posts are intended for guidance only and not a substitute for completing full searches on this forum, having regard to the advice of others, or seeking appropriate professional opinion.
                    Without Plain English Codes of Practice and easy to complete Prescribed Forms the current law is too complex and is thus neither fair to good tenants nor good landlords.

                    Comment


                      #11
                      Originally posted by cris/c
                      law student,

                      We are not looking for a legal loophole. If you are a lawstudent perhaps you should learn not to make assumptions without being in possession of all of the facts.
                      You made it abundantly clear that you were looking for a legal loophole. This is what you said: "I have researched the legal procedure involved regarding the signing of rent guarantees as best as I can, this site has been extremely useful in that matter. However, I have not been able to find anything laid out in a legal format that supports the view that the guarantor must be presented with a copy of the AST agreement before, or at the signing of the document. Can anybody point me in the right direction? I believe there is enough evidence to disprove the validity of the document but every little helps"

                      Anyway, from what you have said since, you have no need of this get-out as the guarantee simply would not apply, whether or not correct procedure had been followed.
                      Disclaimer: What I say is either right or wrong. It may be advisable to check what I say with a solicitor. If he says I am right then I am right, unless he is wrong in which case I am wrong; but if he says I am wrong then I am wrong, unless he is wrong in which case I am right

                      Comment


                        #12
                        Thank you gentlemen for your advice,

                        pms, there is not determination in the original AST agreement with regard to the conditions remaining the same once the agreement has reached the end of the fixed term. Thank you though for your input, I did check it out.

                        The wording of the rent guarantee is specific to a term of 6 months or for the length of the agreement. Apparently, according to both solicitors consulted, the guarantee is badly drafted in so far as continuing the obligations of the guarantor throughout the entire tenancy which went on for nearly 4 years.

                        Also, both solitors have stated that it is very common for guarantors to presume that they were only guaranteeing the intial 6 months, in this case it appears that we are right in our assumption.

                        In any event, the sums of money being claimed are amounts that the LL is not legitimately owed. The events that resulted in the tenants receiving the S21 were at best unfair, and at worst, very near to harrassment. However, this would be more difficult to prove, as it would be the tenants word against the LL.

                        DJB, I think I will consider getting our eldest son to assist my husband in presenting the case, I believe that I could be more useful as a witness. I will certainly contact the court and ask for some advice on procedure.

                        I am hoping that the judge will look at all the evidence and strike out the claim. I am really surprised that the LL is going to court in the first place but I suppose given the large amount of money being claimed, its a risk she is prepared to take.

                        However, we will trust in the law and hope that the judge is as familiar with LL/tenant law as you good people.

                        Comment


                          #13
                          Hello Lawstudent,

                          Point taken, on the basis of what I put in my post, it does read as if I am only looking for a legal loophole to get out of the guarantee.

                          There is a lot of money at stake, none of which relates to the tenants not paying their rent or for damage to the LL's property. The LL is trying it on and hopefully, the judge will come to the same conclusion.

                          Comment


                            #14
                            An update, the Judge struck the claim out.

                            Guarantee not legaly binding beyond the initial fixed term agreement. All monies claimed by LL in excess of anything that tenants could be held responsible for anyway, even if guarantee agreement still valid.

                            Landladies knuckles severely rapped for conduct towards tenants during lead up to their receiving S21 notice.

                            Comment


                              #15
                              Have followed this thread with interest and am happy that justice has been done! You must be very relieved.
                              Unshackled by the chains of idle vanity, A modest manatee, that's me

                              Comment

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