Mislead Guarantor

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    Mislead Guarantor

    Hi everyone

    Thanks for looking. I'm posting because its come to light today that my mum is still a guarantor for her friend, apparently. I'll just write what happened.

    My mum stood as Guarantor for her friend A. The contract for guarantee was signed by mum mum and dated though there are no witness signatures. She is unsure if she was shown the tenancy agreement as she doesn't have the best memory. She was lead to believe by her friend that the guarantee was for the 6 month shorthold, which would have been the tenancy agreement my mum was shown had she seen it. 6 months ended and A asked my mum to stand as G again, she refused. She was then contacted about late rent, so she contacted A who said it was a mistake on the lettings agency and she would sort it. Today, almost 6 months after that, my mum has been contacted again by the agency demanding money as A hadn't paid. Today my mum has collected a copy of the guarantee she signed and a copy of the tenancy agreement, which is completely unsigned. I'm not a lawyer by any stretch of the word but I've looked over the documents and it's all looking a bit strange to me.

    I'll put the image here but my concerns are: It is one long sentence. 17 lines on A4 paper. There is no witness signature on the guarantee. My mum doesn't remember seeing the tenancy agreement, there are no signatures on the agreement we have been given. She was misinformed by the tenant, A, twice. We have been given a paper with an email from a social representative of A, which states at one point "Ms A said she did try to find a new guarantor but the person let her down and she didn't dare let you know." which sounds as though A was led to believe the guarantor length had ended and A has been pressed to supply a new one.

    Also none of the points below (from landlordzone) seem to have been followed during the course of the tenancy. Others have been informed about the late payments, A's Social worker for example, before my mum, which makes me think she wasn't down as guarantor legally but they're pursuing her anyway?
    • 3 The tenancy agreement and its obligations – the guarantor must be given ample opportunity to read and question the tenancy agreement on any points he / she does not understand BEFORE the agreement is signed and witnessed. Guarantors MUST have seen and approved the tenancy agreement they are guaranteeing prior to the signing by the tenant.
    • The guarantor agreement itself should be signed and witnessed as a deed.
    • Landlords should also bear in mind that any variation in the agreement, including the fixed-term coming to an end and tenancy renewal, if done without the guarantor’s consent, will discharge the guarantor’s liability.
    • If problems arise during the tenancy such that the guarantor could become liable to pay, the guarantor must be informed immediately.


    I'm sorry it's so long but I wanted to add everything I've been considering as I've spent a few hours looking over this. Thank you again for looking over this, I'm just looking for a bit of advice as this whole thing doesn't seem right.

    IMG_9314.jpg

    #2
    The property is in england.

    The Tenancy agreement is an 'assured shorthold tenancy agreement (flat)

    Started June 2015

    Initial agreement was 6 months

    Rent due monthly

    Comment


      #3
      Not signed 'as a Deed' so no Witness required.
      Who actually was present when Mum signed T or LA?
      Either
      mum lets LL/LA sue for T debts -How much?. Lets Judge decide outcome.
      Mum then sues T for re-imbursement.
      Mum disputes liability, refuses to pay and may get CCJ. Does she own property on which a Charge can be affixed?

      Moral - don't act as G for anyone without first seeking prof legal advice.

      Comment


        #4
        I think I'd simply decline to accept any responsibility and suggest the landlord/agent decide whether they think the agreement is worth relying on in court.

        It is an agreement to do something, but it's essentially a load of vaguely legally sounding words trying to sound like a contract.
        I particularly like the idea that that the guarantor is agreeing with the landlord jointly and severally.

        The agreement does try and commit the guarantor to any subsequent agreement, so, while the OPs mother may have thought it was for the initial 6 months only, it says it isn't.
        But that's a common misunderstanding of this kind of agreement, which is why it's important to get legal advice (and that's often not possible, because an erstwhile tenant who is desperate for a place to live and the agent pressure the guarantor, who believes that the tenant will be able to afford the property, because they're a friend and family member and who moves into somewhere they can't afford?).

        Worst case, the landlord/agent would win, and, as long as its a small claims court case, there'd be some minimal fees and 8% interest on top, and the guarantor would, otherwise, only be paying what they agreed to.
        And there's a good chance that the landlord/agent wouldn't win or even complete the claim process.
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #5
          I have no wish to blow the trumpet for lawyers, but the form of the guarantee is a classic case of what can happen when a legal document is drafted by someone without drafting experience and/or the requisite legal knowledge. (I hope the guarantee was not drafted by a lawyer.)

          1. The guarantor is said to request the landlord to grant the tenancy. In 99.99% of cases this will be a pure fiction. The statement serves no useful purpose.

          2. The document is not a deed, which means it needs a consideration. The consideration expressed is probably insufficient and does not move between the guarantor and the landlord - the guarantor gets nothing for giving the guarantee.

          3. The guarantee is drafted so as to be in place before the tenancy is agreed. There has to be serious doubt about whether you can guarantee something whch does not exist.

          4. The words from "That the Tenant shall..." onwards have clearly been lifted from a tenancy agreement. They make no sense in a stand alone guarantee because no rent is reserved by the guarantee nor does it contain any tenant's agreements.

          5. The guarantee purports to cover future tenancies and it is open to question whether that is possible - see 3.

          Comment

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