Guarantor refuses to be joint and sevaral. Any solution? Indemnity agreement?

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  • Lawcruncher
    replied
    Originally posted by Nicholas03 View Post
    Point taken. But wouldn't you care to offer an utterly informal opinion ?
    Not a lot of point really.

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  • Nicholas03
    replied
    Originally posted by Lawcruncher View Post
    I would answer your question if I were a litigator, but I am not.
    Point taken. But wouldn't you care to offer an utterly informal opinion ?

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  • Lawcruncher
    replied
    @Nicholas03

    I would answer your question if I were a litigator, but I am not.

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  • Nicholas03
    replied
    Originally posted by Lawcruncher View Post
    The best answer I can give is that whatever guarantees you have you are likely run into problems in getting a guarantor to pay up if does not think his own child is in default and disputes will follow. I do not think that my form of guarantee complicates matters. It is drafted the way it is to reassure the guarantor that (a) he is only liable for his own child's share of the rent and (b) he is not going to get stung for paying for damage caused by someone else's child, though he will be responsible for the full amount of any damage caused by his own child.
    I completely agree with all of that (from experience both as a landlord and as parent of a student renter). I just wanted to be sure I understood how a landlord who has used your ingenious and attractive wording should best (a) approach guarantors if he does need to call on them in circumstances when reasonable people could differ about who should pay what; and (b) go to court if all else fails.
    Or more briefly, if there is a dispute, have I understood correctly that the textbook procedure would be to issue a money claim against all the guarantors as joint defendants, and leave the court to say that some have no liability ? (As opposed to the landlord acting as judge, and deciding what the 'equitable proportions' are.)

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  • Lawcruncher
    replied
    Originally posted by Nicholas03 View Post
    Could I just make sure I've got the practicalities right?
    L lets house to students A B C & D, who have guarantors G H I & J. One weekend A goes home; B & C admit they trashed the kitchen; and D admits that she egged them on, but didn't do any actual trashing. Repairs cost £3000.
    Q1: What does L need to do to confirm that A B C & D can't/won't pay this £3000?
    Q2: Having confirmed that, have I got it right that L then writes to G H I & J on the lines "Please collectively pay me £3000, in equitable proportions, which proportions I leave to you so long as I get £3000 in total"?
    Suppose H & I then pay £1000 each, but G (reasonably) and J (debatably) refuse to pay anything.
    Q3: Does L then write to G H I & J on the lines "thanks for the £2000, but collectively you still owe me £1000. Unless I get this £1000 by [date], I will issue a money claim in the County Court"?
    Q4: If nobody pays any more, does L then issue money claim against G H I & J as joint defendants, and expect the court to order (for example) that H and I pay another £250 each, and J pays £500 ?
    The best answer I can give is that whatever guarantees you have you are likely run into problems in getting a guarantor to pay up if does not think his own child is in default and disputes will follow. I do not think that my form of guarantee complicates matters. It is drafted the way it is to reassure the guarantor that (a) he is only liable for his own child's share of the rent and (b) he is not going to get stung for paying for damage caused by someone else's child, though he will be responsible for the full amount of any damage caused by his own child.

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  • mind the gap
    replied
    Originally posted by Nicholas03 View Post
    Could I just make sure I've got the practicalities right?
    L lets house to students A B C & D, who have guarantors G H I & J. One weekend A goes home; B & C admit they trashed the kitchen; and D admits that she egged them on, but didn't do any actual trashing. Repairs cost £3000.
    Q1: What does L need to do to confirm that A B C & D can't/won't pay this £3000?
    Q2: Having confirmed that, have I got it right that L then writes to G H I & J on the lines "Please collectively pay me £3000, in equitable proportions, which proportions I leave to you so long as I get £3000 in total"?
    Suppose H & I then pay £1000 each, but G (reasonably) and J (debatably) refuse to pay anything.
    Q3: Does L then write to G H I & J on the lines "thanks for the £2000, but collectively you still owe me £1000. Unless I get this £1000 by [date], I will issue a money claim in the County Court"?
    Q4: If nobody pays any more, does L then issue money claim against G H I & J as joint defendants, and expect the court to order (for example) that H and I pay another £250 each, and J pays £500 ?
    You are making things unnecessarily complicated. In the first instance you simply claim the cost of repairs from the tenants' joint deposit from the protection scheme at the end of the tenancy. Only if the damage exceeds the value of the deposit do you need to start claiming through the courts and even then you could claim from aany or all of the Ts. Only when it gets to the stage where they do not pay, that you start suing Gs.

    Plus, as LC says, students very rarely trash properties.

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  • SirDagonet
    replied
    Bureaucrazy,

    have you met any of the guarantors yet?

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  • Nicholas03
    replied
    Originally posted by Lawcruncher View Post
    Who determines the proportions is deliberately left unsaid
    Could I just make sure I've got the practicalities right?
    L lets house to students A B C & D, who have guarantors G H I & J. One weekend A goes home; B & C admit they trashed the kitchen; and D admits that she egged them on, but didn't do any actual trashing. Repairs cost £3000.
    Q1: What does L need to do to confirm that A B C & D can't/won't pay this £3000?
    Q2: Having confirmed that, have I got it right that L then writes to G H I & J on the lines "Please collectively pay me £3000, in equitable proportions, which proportions I leave to you so long as I get £3000 in total"?
    Suppose H & I then pay £1000 each, but G (reasonably) and J (debatably) refuse to pay anything.
    Q3: Does L then write to G H I & J on the lines "thanks for the £2000, but collectively you still owe me £1000. Unless I get this £1000 by [date], I will issue a money claim in the County Court"?
    Q4: If nobody pays any more, does L then issue money claim against G H I & J as joint defendants, and expect the court to order (for example) that H and I pay another £250 each, and J pays £500 ?

    Leave a comment:


  • Lawcruncher
    replied
    A different regime is needed for student lettings. At the moment it is pretty close to the capitalist's dream - guaranteed return with no risks.

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  • Ericthelobster
    replied
    Originally posted by mind the gap View Post
    I disagree. The students have only just moved into their first year's accommodation and are too busy working out how to survive University life generally, to think more than a week ahead. Why on earth should they choose to start rushing round sorting out a house for twelve months hence? Some cities are worse than others, but as soon as the agents start putting up banners in October saying 'New lists for student lets available now!' it is unsurprising that this generates demand. Chicken...egg!
    It's just the same scenario as the recent fiasco over panic-buying of petrol when strikes were threatened. Problem is set up by agents ( /government) and the students ( /drivers) all have to jump on the bandwagon or get left behind.

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  • Nicholas03
    replied
    Originally posted by Lawcruncher View Post
    The above observation leaves you in the running for the award for "Most perspicacious first post".
    Many thanks for your clarity and wisdom!

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  • Lawcruncher
    replied
    Originally posted by Nicholas03 View Post
    lawcruncher's most attractive text
    The above observation leaves you in the running for the award for "Most perspicacious first post".

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  • Lawcruncher
    replied
    Originally posted by Nicholas03 View Post
    If I use lawcruncher's most attractive text (and make the suggested donation), who is responsible for determining the "Relevant Proportion of damages" ? Is it (by implication or otherwise) the landlord? Or is it up to the individual nominated tenants and their individual guarantors?
    Who determines the proportions is deliberately left unsaid which, apart form anything else, avoids any possibility of including a provision which may be deemed to be unfair. It would clearly not be right to specify the landlord and even less the tenant. If we start to bring in third parties we are in danger of doubling the length of the document. By referring to such proportion as is equitable the matter is left to the court. We also need to bear in mind that when it comes to legal drafting it is a question of horses for courses. This draft is aimed at student lettings. Whilst I am sure there are exceptions, on the whole students do not wreck places. (They may leave them looking as if they are wrecked, but once you have cleared away the pizza cartons and had Mrs Mop in, they are fit to be let again.) If serious damage is caused it is likely to have been cause by one of the tenants, not all of them.

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  • Nicholas03
    replied
    If I use lawcruncher's most attractive text (and make the suggested donation), who is responsible for determining the "Relevant Proportion of damages" ? Is it (by implication or otherwise) the landlord? Or is it up to the individual nominated tenants and their individual guarantors?

    Leave a comment:


  • mind the gap
    replied
    Originally posted by Wickerman View Post
    I call BS on this one - the rush is caused by the tenants looking, not by agents pushing them.
    I disagree. The students have only just moved into their first year's accommodation and are too busy working out how to survive University life generally, to think more than a week ahead. Why on earth should they choose to start rushing round sorting out a house for twelve months hence? Some cities are worse than others, but as soon as the agents start putting up banners in October saying 'New lists for student lets available now!' it is unsurprising that this generates demand. Chicken...egg!

    It won't change until all the agents in a particular city agree not to advertise student properties until at least January and I can't see that happening.

    Leave a comment:

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