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Received summons as a guarantor, can you please help?(14 Posts)
I signed as a guarantor for my DD 3 years ago on a 5 person house share and I recently received a court summons for unpaid rent and damages.
The case has been brought against all 5 tenants and 4 guarantors. 1 of the tenants was from the US (UsLad) so he did not have one but something called a professional reference apparently.
The claim is for £1.3k in unpaid rent (all USlad's) and 3.8k in damage to the property. Most damage is cat scratches due to two tenants having cats.
It is accepted by the landlord that my DD had no pets and no rent arrears, I have offered to pay 1/5 as settlement but they will not agree to this.
I have submitted an acceptance stating I defend all claims (as has my DD), the date of service was 21st march.
I don’t know what to do next and by when. I have been to a free legal clinic and to CAB but did not find them too helpful and I think I have to submit defence by this Tuesday?
The agreement I signed shows only my daughter as the ‘The tenant’ but says that we guarantee she will abide by the main agreement in which she is jointly and severally liable.
If we fight this and lose will we get a CCJ even if we pay up?
I am in contact with one of the others mums who is in the same position as me basically but not with any of the others so if they do not (have not) submitted an acceptance of service then judgment is issued by default, does this affect all of us? I just can’t get my head around the jointly liable thing (I get it in principle but not in practice)
Things that might be in our favour.
The main tenant agreement does not appear to be signed by the landlord
There is no signed incoming or outgoing inventory
The maintenance co who did end of tenancy cleaning and repairs is owned by the landlord
The ‘damages’, cleaning etc is obviously exaggerated
Only 4 guarantors for 5 tenants
And I know I should have read what I was signing more carefully!
Appreciate any advice you can give.
What has the landlord done to recover the costs from USLad and the cat owners? If all they're doing is this summons then it may be worth a half hour free session with a solicitor and asking about mitigation of loss.
When I was a student the landlord refused to take several reasonable measures to recover their loss (not incurred by our actions), instead choosing the easy for them route of coming for the students. We had half an hour of free legal advice and were talked through mitigation of loss. I don't know if this applies in your situation, but it is worth looking into because our landlord's case was dismissed on these grounds.
Thanks for replying. They claim to have sent letters and had several tel calls to the tenants. I don't think I have time for any more action really as it's bank holiday and I think I have to submit on Tuesday.
Thanks for making the point though, I will include it in my defence that they were maybe negligent with this particular tenant. It also reminds me that the security deposit of 100 pounds each was too low. It does not even cover a deep clean.
With no agreed inventory damages are going to be hard for the landlord to prove. Unpaid rent is not hard to prove.
Presumably the thief has now gone back to the states and is out of reach?
Oh dear. The jointly and severally liable tenancy means that you will be held equally responsible for his non-payment of the rent.
The damages will be more debatable.
I don't suppose the landlord put in writing that your DD did not run up the rent bill?
If it's any use, my thoughts are running along the lines of:
1. You are guarantor for your DDs rent, not USLads
2. They have made no prior court claim to mitigate the loss of the unpaid rent from USLad
3. The landlord chose a standard of guarantee for USLad's rent that was lower than that for your DD - it is not acceptable for him to pass his losses onto you
4. Although you have no obligation and claim no liability for his losses, you have generously offered to pay 1/5 of the balance. Your offer has been declined.
All of this is from thinking back to my experience and may not be the points you would choose. Clearly, I have no legal training, only this one situation of experience, but I remember it being terrifying.
As Lougle says, the fact your DD is jointly and severally liable means they can pursue you for the whole amount of unpaid rent regardless of the fact it is not hers. If she is also jointly and severally liable for any damages you can be held liable for that as well.
The lack of an inventory is only relevant if there is a dispute as to the contents, e.g. if the landlord is claiming items are missing but the tenants say they were never there in the first place. However, if the damages are overstated you should be able to get them reduced. Equally if the landlord has failed to take reasonable steps to mitigate his loss that may reduce the amount you have to pay.
If you fight this and lose you will get a CCJ against you. However, if you pay within 30 days and the landlord informs the court of this the CCJ will be removed from your record. If the landlord does not tell the court you have paid you can do it yourself but you will have to provide proof of payment and pay a fee.
Following with interest as I am in the same position with my sons student house. 8 tenants and 8 guarantors. My DS paid his rent, my guarantor form named him. One of the students moved out and didn't pay. The court summons is only for 4 tenants and 4 guarantors - we are now waiting for a court date.
If the inventory is missing, then the landlord cannot claim damages - the inventory is meant to document the condition of the property as well as contents of the property. E.g scuffs on walls vs clean painted.
That is why I would not sign as guarantor for my son's uni accommodation as in effect by being jointly and severally liable you are liable for all of the tenants' debt or damage. There were 6 of them and a full year's rent (worse case scenario) would have been £27k. When I explained why DS and his friends found another house that didn't need guarantors.
The reality is they do not actually have to pursue any of the tenants or even other guarantors. If you do have to pay for everything you can seek indemnity from the others but it will be difficult and very costly to pursue the lad in the US.
A proper inventory covers property condition, not just any contents. Kicked in walls, food smeared everywhere, wrecked carpets and so on are just as much damage as to furniture. But a claim needs an agreed inventory at tenancy start.
Thanks for all replies, sorry for not replying earlier, been away.
Specialsubject- yes he is back in US.
I think there being no inventory is a good defence.
Loobylou- sorry you're in the same boat. Lesson learned for me
Phr47- thanks for the information about ccj being removed if paid quick, that's a relief.
Duggee- thanks for all of your points, they are very helpful for my defence & yes we do have it in writing that DD owed no rent.
As Allthebestnames says, you can pursue the others for a contribution or indemnity if you pay more than your fair share of the joint and several liability. It may well be that it is not worth the cost of trying to enforce against somebody in the US, although it depends on the circumstances.
Similarly, loobylou could claim a contribution from the other four tenants / guarantors assuming that all eight are jointly and severally liable. This could be by way of a Part 20 claim (under the Civil Procedure Rules part 20) brought by you in the same proceedings.
I would probably recommend trying to contact the other people who are potentially liable (you should have contact details from the claim form) and agreeing between you the course of action, e.g. Agreeing to split the liability, then making a settlement offer to the claimant. The claimant will still need to prove that the damage has been suffered and may accept a lower offer rather than go to court.
As the others said I'd the contract states jointly and severally liable then you could end up footing the entire bill.
I'm not sure if this is in England or Scotland, but certainly in Scotland if you were to defend yourself (e.g. Dispute the damage occurred etc) then the onus is on the pursuer to actually prove it did and that's where they may slip up. If they can't prove it or don't show up at the hearing (you'd have to show up to present your defence) then it should be a case of awarding you expenses and telling the pursuer to sod off.
(Background: I've worked in debt recovery in Scotland)
Hope that helps!
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