Is a guarantor entitled to a key?

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    Is a guarantor entitled to a key?

    A few years back when I was a less experienced landlord I rented a flat to a 19 year old single girl with a baby who was on housing benefit. Her Mum agreed to act as guarantor, but not knowing the standard procedure for drawing up a guarantor document I did one AST with both of their names on, and after the Mum's name I wrote (acting as guarantor). Both parties signed the document. The daughter lived in the flat and the Mum was frequently there to help with the baby, manage rent payments etc.
    The tenancy became periodic and continued without problem for 3 years. However, the daughter has recently gone off the rails, got herself into debt, drink & bad company. I have tried to resolve the issues with her but after several complaints from neighbors and late rent I issued a section 21 notice. She then didn't pay this month's rent so I issued a section 8 notice to try to speed up getting her moved out.
    On the section 8 I can apply for a court date next week, but the mother is keen to avoid going to court. She also feels that by paying the rent on her daughter's behalf she will just encourage the daughter to stay and pocket the housing benefit money. She has just asked me if, as a person who has signed the rental agreement as guarantor, she is entitled to a key to the property. I am guessing she will just let herself in with her husband and they will move the daughter back home so that they avoid court and the associated costs. What is the legal position regarding giving the keys to the mother?

    #2
    hi, if your tenants mum has not signed a seperate Deed of Guarantor detailing her obigations as Guarantor etc then what u have written on the AST is irrelevant and you have no legal right to ask the mum for rent etc.

    If your daughter wants to give a key to her mum to allow access etc then its up to the daughter. If you want to give the mum a key I would really get the daughters permission as she is the legal tenant and at least you are covering yourself. Giving to key to her mum without her permission is akin to giving the key to joe bloggs.

    lets hope she goes soon eh!

    Comment


      #3
      But if the text saying 'acting as guarantor' is not enforcable, then isn't the mother a co-tenant instead, having signed the tenancy agreement?

      Comment


        #4
        wow. we had a very similar case last year. girl and toddlers, mum initially manages the family and all goes well. With us, girl then marries asylum seeker and moves to town 10 miles away BUT she gives key to 'cousin' who then lives there, no rent paid. However, tenant is nowhere to be found to serve notices on, and 'cousin' gets advice from CAB that she's got rights and has nowhere else to live. Point is, without tenancy agreement there's no legal way to evict 'tenant'. we were on point of issuing agreement to 'tenant' and playing a waiting game (without rent) until we could evict her legally when house was raided as drugs den by local police, original tenant by this time had left her asylum-seeker husband and essayed getting back again (having been housed as homeless by local authority). We negotiated with local authority about taking her back but in meantime eviction notice came through and we had the house back.
        Be very careful who you deal with and who exactly has keys. Your agreement is with the tenant, consider legal advice re 'guarantor'. If I were you, I would repossess the accommodation asap.
        older and wiser landlady
        lesley
        ps - in the margins of all the above the house was burgled, the police, sorry the police receptionist (we couldn't get access to a real policeman) said that if we could indicate who had done it then they would go and interview them ...........!!

        Comment


          #5
          Hi Lesley
          Perhaps our cases are more similar than you thought - the police broke into my flat looking for the tenant's ex-boyfriend.... So far nobody's paid for the broken lock & door frame but me and the police don't seem keen to discuss it. I would still appreciate anyone's thoughts regarding the key, but I think the whole issue raises an interesting discussion as to whether a guarantor is just signing up to pay the money in the case of default of payment by the tenant, or whether they are signing up to making sure the general rules of the tenancy are adhered to, including the rent. If the guarantor only has liability as far as the rent is concerned, and no more, why do we as landlords have to ensure that the guarantor has seen and read the whole of the tenancy agreement?
          Is it the case that if the tenant defaults on rent & damages the property the guarantor can only sit by and watch it happen, waiting to see how big the bill will get by the time the case gets to court?
          In this particular case the mother is honest and trustworthy (I believe) and is mortified that her daughter has got into this situation. So if it was legal I would be happy to give her a key but wanted to check first.

          Comment


            #6
            Originally posted by LMT View Post
            But if the text saying 'acting as guarantor' is not enforcable, then isn't the mother a co-tenant instead, having signed the tenancy agreement?
            well it depends......does it state in the agreement what the guarantors liabilities are? If not then its not worth the paper its written on. If the Ta sets out the guarantors liabilities and she has signed this then yes its enforcable.

            all our guarantors are detailed on the tenancy agreement front page but we also ask them to sign and read a Deed of Guarantor which sets out their liabiities etc and ours states

            That the Tenant shall pay the rent hereby reserved on the days and in the manner aforesaid and shall perform and observe all the agreements on the part of the Tenant hereinbefore contained and

            That in the case of default in the payment of such rent or in the performance or observance of such agreements as aforesaid I/We shall pay and make good to the Landlord on demand all losses damages costs and expenses thereby arising or incurred PROVIDED THAT any neglect or forbearance of the Landlord in endeavouring to obtain payment of the rent reserved by the Agreement when the same becomes payable or to enforce performance or observance of the several agreements on the Tenant’s part therein contained or at any time which may be given to the Tenant by the Landlord shall not release or exonerate or in any way affect the liability of the Guarantor under this indemnity and

            That the provisions of this indemnity shall apply to any increased rental and/or to any continuation extension renewal or re-grant of the tenant created by the Agreement whether by operation of law or agreement between the Landlord and the Tenant or otherwise as if this indemnity were incorporated in full in such contained extended renewed or re-granted tenancy (as the case may be) and for the avoidance of doubt the Guarantor hereby agrees with the Landlord that the Tenant shall pay the rent reserved by such continued extended renewed or re-granted tenancy (as the case may be) and shall perform and observe all the agreements on the part of the Tenant therein contained:-
            "

            I still say that you should not give the mum a key withouts the daughters permission.

            Comment


              #7
              NO! Guarantor's covenants not enforceable UNLESS G. executes as a Deed (AST or separate Deed)- signing AST is not enough.
              See my CONVEYANCING FORUM thread re contracts.
              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


                #8
                Thanks Jeffrey & Poppy for input. The AST does not specify the guarantor's responsibilities, as I wasn't aware of how this should be done at the time. I have since done a contract on a different flat and put all the paperwork in place properly this time .... live and learn.
                So back to one of the original points - if we can ignore the text that says 'acting as guarantor' as legally non-enforcable, did the Mum sign the AST as co-tenant?

                Comment


                  #9
                  No, is she is not named as tenant then she has no liabilities.

                  Comment

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