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Original poster

Tenant absconded owing rent. Are her two guarantors liable?

77 replies

judeinsussex · 12/05/2023 15:18

I own a little property which I bought to help boost my retirement income and let it out to a single young woman. After a year, tenant should have gone when her Agreement was up but she just stayed on and said that she wished to rescind. While I understand that it was legal for her to do this, it didn't mean that no further rent would need paying. From the tine that she rescinded she paid no rent at all, and neither did her guarantors. I tried to do a Money Claim through the courts but as the tenant had absconded I had no forwarding address for her. However, on the money claim form, I still listed her as Defendant No. One, just giving her e-mail and phone number, but also saying that she refused to give forwarding address. On the form I also listed her two guarantors and gave the address for these two. The court, however, has returned the claim form to me complete with my cheque. They say that they cannot process the claim as I did not provide an address for Defendant No. 1 (former tenant). I rang court for help but they said that they were not allowed to advise. The person who answered the phone said that I should put on the form the last known address for the tenant, which would be the address of my property! I now think that I should do a fresh claim leaving tenant's name off completely but just claiming against the two guarantors. Would this be feasible - without the name of the tenant? By the way, the 'managing' estate agents did manage to get the return of the deposit for me which I kept towards the debt, but the agents have done very little else for me as they said their fee doesn't cover this sort of thing. At present, I am owed £4,500. Apart from owing rent, the tenant left the property in a very bad condition which meant that I had to engage a rubbish disposal firm to clear it, followed by a deep professional clean. I waited months for the court to get back to me following my claim, only to be told that the claim couldn't be processed because I didn't provide an address for one of the defendants (the tenant who absconded!). All this has been so very stressful. I can well understand why landlords often do not follow up on this sort of claim but when I met the guarantors (at the start of the tenancy)they seemed such nice and well heeled people. You live and learn I suppose. I don't want them to win over this but I feel that I'm crumpling.

OP posts:
LauraNicolaides · 18/05/2023 16:27

judeinsussex · 18/05/2023 14:34

Thank you, Laura, for another helpful reply. I knew, probably, that I wouldn't get anywhere with trying to find former tenant through a car registration, but it was just a thought.

As per your suggestion, however, I have just tried to call the British Landlords' Association, to whom I pay annually for legal advice, to ask how I might go about doing a claim on a 'no-costs' basis, but no reply at the moment. If I could do it this way then it would save me a lot of worry and I certainly wouldn't mind paying just the court costs. Money is tight at the moment on account of having the property empty, on top of paying all the contractors fees to put the place back into good condition.
Anyway, whilst getting the guarantor's agreement ready to send off to BLA once again, I noticed that I had missed out a clause when I copied this agreement into these posts (my post dated 16.5.23. refers) and with this extra clause added, it may make things a little better, I hope. I probably missed it off as I was feeling stressed at the time and was also typing from my mobile instead of using my main computer where the keyboard is much quicker and easier. Anyway the part of the agreement I accidentally missed off says:-
3) The Guarantor will make good to the Landlord any loss or expense that the Landlord may suffer or incur as a result of any failure by the Tenant to pay the Rent in accordance with those terms amounting to xxxxx pcm and for any dilapidation costs (if in excess of the Tenant's security deposit) which may be deemed to be the Tenant's responsibility as stated in the Agreement.

The Agreement wasn't witnessed, but signed by both guarantors and myself.

Actually, I wouldn't mind dropping all this now but, as you say, I'm almost there
and I hate to give in as its not as if the guarantors seemed down at heel at all - they looked quite wealthy business people and I think it disgraceful how they are behaving. They have the means to pay but I think that they just want to see if they can pull a fast one if they can which is very dishonourable and unfair. Its not as if I have a portfolio of 'buy to let properties'. I just have the one little place, still mortgaged. I've just come across a receipt from Agents to tenant which I found at the property when I was clearing out earlier, acknowledging a sum of money (a whole year's rent paid upfront). I had it monthly so agents would have held on to this I suppose. Tenant would not have been able to pay this amount herself - so money would have come from her guarantors over to her, which she then she handed over to agent - so receipt is in her name not guarantors name.

The good news is that new agents have found me a a very nice couple who want to take the place over asap. Their references are good and they will be moving in in one week's time, as soon as decorator finished. They are also happy to take their own furniture. This time I will definitely be taking out Landlord's insurance.

What do you think of Clause (3) which I missed out. I do hope that it will make the agreement a bit more water tight.

Hi @judeinsussex , clause 3 can't hurt. I'd still be a bit worried about it not being signed "as a deed" though - ie properly witnessed. As I understand that alone could be enough to sink an otherwise well-drafted guarantee. I'm not holding myself out as an expert here though! And just the guarantors getting official County-Court papers dropping through their letter box might be enough to focus minds before anyone looks too closely at the finer points of law.

Good news about the other tenants.

Kerrybemmy · 20/05/2023 05:48

Good respectable working couple with good references means nothing. My dad developed schizophrenia and totally destroyed the house he was living in knocking holes in the walls, drilling holes in the ceiling, smashed windows and basically dismantled the entire house. He had lived there for 3 years and had perfect references from every landlord. His wife couldn't stop him and didn't dare tell the landlord. £60,000 of damage was eventually done to the property before he was evicted. Perfect references means absolutely nothing...people could lose their jobs and therefore not pay....become mentally ill etc. Some landlords will give good references just to get rid of people and out of their property.

femfemlicious · 20/05/2023 05:56

It's just not worth being a landlord anymore. Too many pitfalls. I would just sell the house

Original poster
judeinsussex · 20/05/2023 09:56

Yes, tried to sell the house but as it comes into first time buyer category, no interest in it all at the moment, and I can't just 'give it away' as I need to re-pay my mortgage. Yes, there are pitfalls in being a landlord and I will put it on market once the market picks up. It will not be before new tenants' agreement is up, though.

New tenants could only be accepted if the rent guarantee company agreed everything, and they did. First potential new tenant was rejected by insurance company as he couldn't prove his income for some reason.
I also phoned the lawyer yesterday after Laura suggested that I go to court on a no fee basis. He said that the courts don't work that way so I will just crack on with the usual court forms and name the guarantors. I had thought myself that I could send papers to her c/o guarantors and rang the court to ask them if this would be ok. They said that any address sent to a defendant care of someone else would be rejected so that one was a non starter.

OP posts:
SiouxsieSiouxStiletto · 20/05/2023 10:12

I had thought myself that I could send papers to her c/o guarantors and rang the court to ask them if this would be ok. They said that any address sent to a defendant care of someone else would be rejected so that one was a non starter.

I don't understand why you haven't started the claim already against the two guarantors? As abused above, I'd just leave the tenant off the claim and proceed the claim without her.

Just remember that a judgement is no guarantee that you will receive any money and you may need to pay more should you want some kind of enforcement, like a Charging Order against their home or an Order for Questioning.

SiouxsieSiouxStiletto · 20/05/2023 10:13

And if you are not a member of a Landlords Association I'd really recommend joining one as soon as possible.

Original poster
judeinsussex · 20/05/2023 15:25

Yes, I am ready to send the claim forms to the court, naming just the two guarantors and leaving tenant completely out of it. I needed to check out a few options before I fully finished the forms as the first time around the court just sent papers back to me as I had named the defendant without an address. I had thought that this would have been alright with just her e-mail address and mobile number, but this was not so. This meant that I had to re-write most the forms but I've finished this task now and am getting the papers off to the courts on Monday, recorded delivery. Having telephoned the courts I was told that there is a backlog and my claim will have to start from square one again, with a fresh claim for, naming just the guarantors. I could have sent in an amended claim form but was advised by British Landlords Association not to do so. Once fresh claim is received by court, it will take about two months for it to be looked at by the administration department, before I am given a date to go to court, so could still be looking at July or August. Anyway, once the claim is in there's nothing I can do but wait. I wouldn't mind having to pay a bit more money for extra questions or a Charging Order, but thank you for pointing this out so I will be prepared for it.

OP posts:
heinztomatosoup · 20/05/2023 15:52

Definitely small claims court, I used this method several years ago for unpaid rent and was awarded in my favour. Sadly ex-tenant absconded the country and no guarantors hence never saw a penny 🥲

SiouxsieSiouxStiletto · 20/05/2023 16:04

Are you submitting the Claim form by post because the claim is over £10K @judeinsussex?

Original poster
judeinsussex · 20/05/2023 16:18

No, the claim is for under £10,000 but as the forms need to be sent to Salford, they need to be posted as I can't get there to deliver by hand. It won't be dealt with any faster either by post or hand delivered; it will still take the courts about two months just to start looking at it. Anyway, once papers are with the courts, there's nothing more I can do but wait.

I'm glad that the person writing above did win his small claims case for unpaid rent but a real shame the ex-tenant absconded by leaving the country and not settling the debt. I guess that this sort of thing can happen. The guarantors in this case have a very expensive looking property just outside London and I shouldn't think would much appreciate having a charge made against it.

OP posts:
SiouxsieSiouxStiletto · 20/05/2023 17:52

I just wondered why you weren't making the claim online?

Kazzyhoward · 20/05/2023 19:48

The guarantor agreement has a clear start and end date of the tenancy. If the tenant paid their rent for the period of that tenancy, then you can't have a claim against them for the unpaid rent covering the period after the end of the stated guarantor period.

You also can only claim "dilapidations" that occurred during the specified period, and not any that occurred after it. The guarantors could argue that the damage etc happened in the extended period, not the period covered by the guarantor agreement and you'd have to prove otherwise.

Overall, I think you've made two mistakes which probably prevent valid claims against the guarantors, firstly not getting a new agreement covering the extension period, and secondly, having such a shoddy guarantor agreement in the first place - it's highly likely a judge would throw out the case on both grounds as that agreement is probably unenforceable as it has no definitions, etc, i.e. what constitutes dilapidation. There's a reason that properly drafted legal documents are usually several, if not dozens, of pages in length!

Mammajay · 20/05/2023 20:28

I haven't read the full thread but sympathise as we had a similar experience and it was a nightmare. The thing which makes me query whether the guarantors would be liable is that the guarantor contract had a beginning and end date..if the rent was paid during those dates, their responsibility might be ended. I would advise phoning the free legal hour on LBC with a precisely worded question. Something like tenant left owing rent and with flat a wreck. Are guarantors liable given dates on agreement? There are also some good free landlord forums. Good luck. Come back and let us know how it goes.

Original poster
judeinsussex · 21/05/2023 07:35

Yes, I do have grave doubts myself about the wording of the guarantors' agreement and am now blowing hot and cold about whether to drop the claim altogether because of this. I was due to post papers off tomorrow but am worried because if I lose the case, and guarantor engaged a good lawyer, then I might have to pay his costs too. The reason why the agents didn't do a fresh agreement for the extra term is because we didn't agree that she stay on in the first place - she was just staying there without permission. She gave in her notice at the end of the agreement term and then withdrew this notice about two weeks after and said that she would 'rescind'. She was allowed to do this under the law but after this time was up, she just stayed on again, but we certainly did not agree. I doubt, in this case, if she or her guarantors would have signed fresh agreements as guarantor knew, probably, that he was no longer responsible since tenancy agreement had ended and he certainly wouldn't want to be signing up again but they were just trying it on to see how long she might be able to stay there free of charge. Once a date for an Eviction Order was sent to her, she left. It was after three months so it could have been a lot worse. I think that they all knew what they were doing right from the start and it was a way of getting a few months are rent.

Seeing all the advice now about the shoddy agreement etc. yes, I can see it myself now but I trusted the agents to do what was necessary to protect me. Not very wise of me with hindsight and an expensive lesson to have learnt. What a good idea to phone LBC legal's hour. I will try to find out how to do this. I do have a lawyer (by phone or e-mail) and I paid £80 a year for this service but did not have him at the start of the tenancy - only now - because of all this mess. He won't advise what to do, though, he only states things as they are. He says that the guarantors' agreement is contentious but he said that a judge might be able to see what was meant by it.
I have taken up with the agent that the guarantor's agreement is not water tight.

OP posts:
Iyiyiiii · 21/05/2023 07:44

If you're paying £80 a year for a lawyer, he's not going to be very good....

SiouxsieSiouxStiletto · 21/05/2023 09:02

Kazzyhoward · 20/05/2023 19:48

The guarantor agreement has a clear start and end date of the tenancy. If the tenant paid their rent for the period of that tenancy, then you can't have a claim against them for the unpaid rent covering the period after the end of the stated guarantor period.

You also can only claim "dilapidations" that occurred during the specified period, and not any that occurred after it. The guarantors could argue that the damage etc happened in the extended period, not the period covered by the guarantor agreement and you'd have to prove otherwise.

Overall, I think you've made two mistakes which probably prevent valid claims against the guarantors, firstly not getting a new agreement covering the extension period, and secondly, having such a shoddy guarantor agreement in the first place - it's highly likely a judge would throw out the case on both grounds as that agreement is probably unenforceable as it has no definitions, etc, i.e. what constitutes dilapidation. There's a reason that properly drafted legal documents are usually several, if not dozens, of pages in length!

All of that is true.

heinztomatosoup · 21/05/2023 12:44

@judeinsussex I understood you have no liability for other party's costs in smalls claims court, so your maximum liability is your own court fees, any any solicitors fees if you use one. Please check this but may be worth a go?

Sunshinegirl82 · 21/05/2023 13:18

What, if any arrangement did you have with the agent regarding the documentation that was put in place? If that wasn't fit for purpose there might be a potential claim against the agent for your losses? Might not be a runner but perhaps worth checking?

Original poster
judeinsussex · 18/06/2023 09:04

This horrible episode is now over since the guarantors have paid up in full, much to my surprise and to my huge relief. I suppose that they knew they were in the wrong and that a judge would most probably rule in my favour if it went as far as going to court.
I hadn't got as far as phoning the legal hour on LBC as the barrister who runs it was away for 3 weeks but I will keep the details in case I need him for the future even on another subject. I have learnt a tremendous amount through all of this and now realise that the world of letting is a minefield. Any prospective landlords out there - BEWARE.
Thanks everyone.

OP posts:
BTMadmummy · 18/06/2023 17:26

judeinsussex · 18/06/2023 09:04

This horrible episode is now over since the guarantors have paid up in full, much to my surprise and to my huge relief. I suppose that they knew they were in the wrong and that a judge would most probably rule in my favour if it went as far as going to court.
I hadn't got as far as phoning the legal hour on LBC as the barrister who runs it was away for 3 weeks but I will keep the details in case I need him for the future even on another subject. I have learnt a tremendous amount through all of this and now realise that the world of letting is a minefield. Any prospective landlords out there - BEWARE.
Thanks everyone.

That’s fantastic news @judeinsussex

LauraNicolaides · 19/06/2023 00:25

Congrats Jude, that's very good news.

This might be a good example of the fact that even unenforceable agreements can still work in your favour because the other side doesn't take advice and realise that it's possibly unenforceable!

NotEverORNever · 19/06/2023 01:00

That's a great update. I'm pleased for you.

MysterStoneCircle000 · 19/06/2023 01:51

Do you have landlord insurance ?
Have you contacted them ?

SiouxsieSiouxStiletto · 19/06/2023 07:41

I have learnt a tremendous amount through all of this and now realise that the world of letting is a minefield. Any prospective landlords out there - BEWARE.

It is but like any business, you should do your research before you start. I'm sorry that this has caused you so much stress and glad you've learnt a lot but I would spend some time now reading up on the things you should do as a Landlord to protect yourself from the pitfalls in the future.

ohsoso · 19/06/2023 07:45

I’m so pleased they paid up