Guarantor stuck. Advice please

[Vags]

Hi all,
Not too sure if anyone can help really but the situation is as follows.

My stepfather signed as guarantor for my brother on a 2 bed flat. This was despite being told by the family not to, and knowing how much trouble my brother is. The rent was to be paid by HB, and after a few problems, such as my brother never submitting the application, it eventually was.

Now, my brother abandoned the property in June or July, despite signing a 2 year agreement. The HB stopped in August apparently as the council could not contact him.

The first we heard of non payment was last week when my stepfather got a letter asking for rent from then until now.

In between then and now they have been consistently told that my brother has left the property, he has in fact moved in with some girl or other. They won't however start a repossession or cancel the tenancy without him doing it.

No one actually knows where my brother is, and he won't return calls. The only reason anyone knows anything at all is via Facebook.

My stepfather did not receive a copy of the tenancy agreement and did not even see it apparently. He also did not receive copies of anything that he did sign. The poor sap works as a cleaner in asda and doesn't have a penny to his name other than a rundown old house.

Does he have any rights whatsoever in this, as currently the LL is saying the charge will amount to £7k.

Thanks for your time.

[Snorkerz]

Firstly, the amounts the landlord is seeking seem to be correct - he has no obligation to end the tenancy before the end of the contract.

However, if the landlord were to sue your stepfather then the fact that he did not see the tenancy agreement would stand in his favour quite heavily.

He should write to the landlord denying liability and asking the landlord to provide copies of the supposed guarantee agreement. That in itself could give other opportunities to defend.

For example, if SFs signature was not witnessed then the document can not be a deed and there is a very strong argument to be made that a guarantee like this has to be executed as a deed.

The fact that the landlord accepted a relatively poor person as a guarantor suggests he may not know the ins & outs of guarantees, so may have made mistakes in the wording etc.

So, once you have a copy of the guarantee, comeback & we will see if it is possible to tear any holes in it

[Wight Knight]

Slightly out of left field but possibly applicable depending on the circumstances - presumed undue influence could be considered, especially if the landlord hasn't performed due diligence on the guarantor and provided notices advising the same to seek legal advice before signing. Summary of a recent case here: http://www.burges-salmon.com/Practic..._decisions.pdf

Snorkerz - is 5 months a reasonable length of time for the landlord to leave the property unoccupied - so as not to minimise losses? Therefore could the £7000 demand be lowered a bit - or does it fully depend on the terms of the agreement?

Lastly where is this flat? £7000 for 5 months seems a good return (£1400 per week). But I notice that HB is capped at £290 pw for two bedrooms, £250 pw for 1 bdrm even in the most expensive areas. Was he expected to top up but didn't? I don't know much about HB so just asking for my own education.

[jjlandlord]

IMO it's not advisable to let a property empty for 5 months because of insurance issues, squatters, etc.
That said, this is a fixed term tenancy and iirc rent is a debt so landlord has no obligation to minimise his 'loss'.

[Wight Knight]

Thanks for the correction, yes no duty to minimise 'loss' from rent arrears, duty to minimise only applies to claims for damages. Rent is just performance of the contract not a loss as such - an explanation here http://www.wellerslawgroup.com/site/...gate_loss.html

[Snorkerz]

I agree, mitigation isn't an issue, there is nothing to mitigate until the rent becomes due and then its a debt, you do not need to mitigate debt.

Reichman & Anor v Beveridge & Anor [2006] EWCA Civ 1659 applies http://www.bailii.org/ew/cases/EWCA/Civ/2006/1659.html

[Vags]

Thanks guys, once I can get my hands on the guarantee I'll post it up here.

Just to clarify, the £7k, I'm assuming, is for the entirety of the tenancy, so 2years worth.

The place was a pit and really shouldn't have been let to begin with so far as I'm aware. Damp and mould in the bedroom had the place stinking.

[Snorkerz]

We don't know what the £7k is for, but in court he would only be able to claim for rent legally due - and it doesn't fall due until each months rent day.

The condition of the property has no relevace to this particular issue - if it was a genuine problem, that was the tenants issue to deal with.

[Vags]

Just an update as we're trying to get our hands on everything that was signed. The SF has said he signed the same paperwork as my brother and nothing else. So it's looking more likely that he signed the tenancy agreement as opposed to a separate deed.

Pointed out that in that case he should have read the bloody thing. He still however didn't get copies of anything that was signed, hence the LL dragging their heels with giving him it.

No idea really where the whole deed/agreement thing differs unfortunately.

[Snorkerz]

If he has signed the tenancy agreement as a guarantor, then he may still have the 'deed' get-out.
If he has signed it as a tenant (even if he didn't live there) he may be in trouble.