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Remus2004
Remus2004, Barrister
Category: Property Law
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Experience:  Over 5 years in practice.
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This question relates to a private short hold assured tenancy

Customer Question

This question relates to a private short hold assured tenancy matter.

My partner and I signed up for a 12 month short hold assured tenancy in March 2011. My father became a guarantor for us both. My Father signed a guarantor agreement, which was witnessed by my mother and also signed by the letting agent

The tenancy was renewed in March 2012 for a further period of 12 months at an increased rental of £1,000 per month (the rent was £950.00 pcm prior to this).

In September 2012 my partner and I split up and I left the property and rented elsewhere. I continued to pay my half of the rent until the end of the fixed term agreement, as did my ex-partner. The fixed term tenancy expires on 18th March 2013, meaning that both my ex-partner & I made our last rental payment on 18th February 2013.

The agent served my ex-partner & I with a notice requiring possession of the property on 11th January 2013

The Letting agent for the property telephoned me yesterday to let me know that my ex-partner had called her to explain that she will not be leaving the property on 18th March if the Local Authority have not found her and her 3 children somewhere else to live. My ex-partner apparently asked the agent if I would still be responsible for paying my half of the rent to which the agent said "no" as I had given her written notice in August 2012 that I had left the property, which in real terms any obligations I had under the tenancy would cease to exist as of 18th March 2013. However, the agent informed me that my Father's responsibility as guarantor would continue until such time my ex-partner leaves the property of her own volition, or is forced to leave the property by way of possession proceedings.

My question to you is two-fold

Is there any way that my Father can legally absolve himself of his guarantor responsibilities? if not,

Is there any way in which we can make sure that any costs to him are mitigated. e.g is he or I able to insist that the agent goes for accelerated possession of the property if we offered to pay the increased costs of doing this? Are we able to put the agent on notice that if possession of the property is not obtained by them within one month of the end of the fixed period 18th March 2013) that we will not not be liable for any further charges etc.

Many thanks.

Kind Regards,

Jamie O'Connell
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank your for your question. I will try to help with this.

Just to be clear, in short you served notice upon an AST?
Customer: replied 3 years ago.

FOR JOMO1972. My e-partner was served with notice under and Assured Short hold Tenancy. A copy was also posted to me by the letting agent at my new address.


 


Thanks,


 


Jamie

Expert:  Remus2004 replied 3 years ago.
Ok.

So the landlord served a s21 notice? You never served notice?
Customer: replied 3 years ago.

I never served notice, the landlord served an S21 notice. jus to clarify my ex-partner and I were the tenants. I was the one that left in September 2012, leaving my partner in the property.


 


Thanks,


 


Jamie

Customer: replied 3 years ago.

FOR JOMO1972 I never served notice, the landlord served an S21 notice. jus to clarify my ex-partner and I were the tenants. I was the one that left in September 2012, leaving my partner in the property.

Expert:  Remus2004 replied 3 years ago.
Yes, I saw that above but I wasn't sure where the notice came from.

Can I just check that you had a stand alone agreement with you partner to divide the rent in half?
Customer: replied 3 years ago.

FOR JOMO1972 No, even though my partner & I were joint tenants and incidentally the tenancy agreement is joint & several, up until I left the property, I paid all of the rent - £1,000 pcm. When I left the property in September, we then started to split the rent 50/50 Her half was paid via Housing Benefit.

Expert:  Remus2004 replied 3 years ago.
OK.

The guarantee that your father signed, I presume it only guaranteed the instant AST? It doesn;t say anything about the whole of your occupancy?
Customer: replied 3 years ago.

 


FOR JOMO1972 Below are the main and relevant clauses from The Guarantor form:


 


The guarantor has agreed to act for the Tenants should they fail for any reason, to meet the financial commitments arising from the Tenancy Agreement entered into on 18th March 2011 in respect of the property


 


This Guarantor agreement refers to the current tenancy being undertaken and any extension or renewal of that tenancy


 


I hope this helps.


 


Is there any way I can scan and email the Guarantor form to you, so you can see the whole thing, or is this not necessary?


 


 

Expert:  Remus2004 replied 3 years ago.
It actually might be useful in this case actually.

You can email it [email protected] but make sure you include a link to this post so the mods know its for me.
Customer: replied 3 years ago.

I have just emailed the Guarantor form as per above instructions.


 


Many Thanks.


 


Jamie

Expert:  Remus2004 replied 3 years ago.
Thats great. It does slow things down a little but it might be important here
Customer: replied 3 years ago.

I agree and thank you for your service so far and indeed your thoroughness. I am very impressed.


 


Kind Regards,


 


 


Jamie

Expert:  Remus2004 replied 3 years ago.
Thanks.

I will come back soon
Customer: replied 3 years ago.

Hello there,


 


FOR JOMO1972


 


Any news on this?


 


Please advise.


 


Kind Regards,


 


Jamie

Expert:  Remus2004 replied 3 years ago.
Yes, if came though late last night.

I'm out at court right now but I'll be clear in 10 mins. Its only a mention
Expert:  Remus2004 replied 3 years ago.
Hi

I got the guarantee. Unfortunately its fairly bad news.

That guarantee does bind him to the whole of the contract. An AST is issued on the basis of joint and separate liability so that you are both liable for the actions of the other and he has guaranteed the entire deal.

On your specific points

1 No. Once you agree a guarantee you are bound. He can recover by suing her if he has to pay out but the practical reality is that she doesn't sound as though she is worth suing regrettably.

2 Not really. At least, they should seek possession of the property by the fastest means so as to mitigate your losses. I'm not immediately clear why possession was sought upon this date? It seems to be at variance with the dates of the tenancy agreement anyway. If this is a S8 issue then its just as quick to get in by those means.

I'm really sorry as I know its outrageously unfair that she is able to behave in this way. Unfortunately you may just have to sort out this particular issue and then move on and find yourself a girlfriend who doesn't exploit you in this way. A good woman puts money on the table.

You can also talk to Sue at ABC Properties on 07595752223 who will advise you on any options beyond this.

Sorry thats probably not the answer you wanted but it is the position that you have and I have a duty to give you truthful and accurate information even though its not what I want to say.

Hope this helps. Please rate my answer OK SERVICE or above and I can answer your related questions.
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69367
Experience: Over 5 years in practice.
Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

FOR JOMO1972. Many thanks for your opinion. It was not the opinion I was looking for, but, as you say, it is the factually correct and is the legal position as you see it.


 


I do have further questions for you relating to the Guarantor Agreement/Deed:


 


1). In view of the fact it has been signed as a Deed, should the witness to the signature be a non-relative? If so, am I able to contest the legality of the guarantor agreement on this basis?


 


2). Our original tenancy agreement dated 18th March 2011 was for a fixed period of 12 months only, meaning that it should have expired on 17th March 2012. To the best of my knowledge neither my partner or I signed a new tenancy agreement after this period. I do recall signing a piece of paper sent to us by the Landlords agent asking whether or not we wished to renew the tenancy and if so we were to tick the relevant boxes and sign and send the piece of paper back to the agent. We agreed to renew the tenancy for a fixed period of 12 months, although we never received or indeed signed a new tenancy agreement. Bearing this in mind and assuming that we did not sign a new tenancy agreement this prompts a few more questions:


 


When I informed the agent in August 2012 of my intention to leave the property on 28th September 2012, they advised me that although I intended to leave the property my responsibilities and obligations under the tenancy would not cease until 17th March 2013 (the end of the 12 month fixed period). Surely, if I did not sign a new tenancy agreement then our tenancy would have been on the basis of a Statutory periodic Tenancy as opposed to a fixed period tenancy? This being the case, then I believe that I only had to provide 1 months notice of my intention to leave the property, meaning that my responsibilities and obligations under the tenancy agreement would have ceased on 18th September 2013. If this is the case am i able to go back to the agent and demand back the rent that they informed me I was legally obliged to pay until the end of the fixed period on 17th March 2013.


 


Please advise.


 


With thanks and regards,


 


Jamie

Expert:  Remus2004 replied 3 years ago.
1. No. There's no need for a witness at all

2. No. She is just an overstayers on an AST and the guarantor is liable

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