PDA

View Full Version : Advice Needed. joint tenancy agreement and one tenant defaulting on rent.



dipz1110
27-03-2010, 17:48 PM
hi, me and my fellow tenants are in abit of a pickle.

we are students and rented a property for accomodation and signed a joint tenancy agreement. there were initially 4 of us, however, one the tenants didnt pass their first year of university and never moved in. he payed rent for the first 3 months but stopped and now there are arrears of over £2000 in unpaid rent. initially, the landlord said they would be persuing the guarantor but had no reply and we have now received solicitors letters with court preceedings starting soon. what options do we have as we all have separate guarantors and we have been fufilling our part of the rent on time. i understand that the joint tenancy agreement means we are all liable for the unpaid rent, but as students, we dont have any income and shouldnt we the non paying tenant be only liable with him and his guarantor being persued only?

i would like to thank those who reply in adavance as this is a very stressful issue at the moment.

mind the gap
27-03-2010, 17:56 PM
hi, me and my fellow tenants are in abit of a pickle.

we are students and rented a property for accomodation and signed a joint tenancy agreement. there were initially 4 of us, however, one the tenants didnt pass their first year of university and never moved in. he payed rent for the first 3 months but stopped and now there are arrears of over £2000 in unpaid rent. initially, the landlord said they would be persuing the guarantor but had no reply and we have now received solicitors letters with court preceedings starting soon. what options do we have as we all have separate guarantors and we have been fufilling our part of the rent on time. i understand that the joint tenancy agreement means we are all liable for the unpaid rent, but as students, we dont have any income and shouldnt we the non paying tenant be only liable with him and his guarantor being persued only?

i would like to thank those who reply in adavance as this is a very stressful issue at the moment.
I am really sorry that it is proving stressful for you, but unfortunately, although it does seem unfair, the LL is indeed legally entitled to pursue any or all of you and possibly any or all of your guarantors (depending on the wording and validity of the G agreements). That is exactly what 'joint and several liability' means.

In the end, a contract is a contract (as you are discovering). It was not a good idea to allow the room to go unoccupied when your friend did not move in - he or you (or all of you) should have found someone else to take his place and have them put onto the TA in your friend's place. When does the fixed term of your tenancy end?

If your LL pursues this debt through the courts and you do not/cannot pay, you may will end up with a county court judgement against you and possibly against your guarantors. You may be able to sue your friend for the money but presumably you would have the same difficulty as your LL is doing. Is the 4th tenant still in the UK? Do you have any contact details for him?

Preston
28-03-2010, 22:21 PM
In addition to MTG's advice and questions it may be worth looking at the agreement in a little more detail so that you can be sure of your current status, in particular that you have a joint tenancy. The detail that raises a query in my mind is your reference to separate guarantors for the individual occupants. This may imply sole rather than joint tenancies.

So, if you are able to do so, could you provide more detail on the detail of both the tenancy agreement and the guarantors' agreements. The exact wording would be helpful if possible.

sting2
29-03-2010, 09:52 AM
I am on the other side of this fence ...

I am a LL with a number of student properties. My AST agreements are all worded "Joint & Several liability" but Ive never tested this part of them because Im unsure as to how the court would respond.

I currently have an identical situation to that described by DIPZ1110 (Before you ask - No completely unconnected case, Im not his landlord ;) ) but I would have thought that the court would expect me to take legal action against the defaulting tenant first and obtain a CCJ against him/her. Then, if defaulting tenant still failed to pay up, the court would accept an action against remaining tenants.

Even then Im a little unsure, as surely the court would expect me to take further CCJ enforcement action against the defaulting tenant before going after the others.

I guess it boils down to the same question as DIPZ1110 posed, ie how far is a LL compelled to go to pursue deaulting tenant before he can turn to the other co-tenants ?

jeffrey
01-04-2010, 15:56 PM
L is not 'compelled' to do anything. He/she can pursue any one of the tenants- or any combination of them- at his/her discretion.

toys19
15-04-2010, 15:23 PM
Jeffery I would never question your obvious superior knowledge, but is this really really true, I am an LL in a similar situation and one tenant has not paid rent, can I just pick whichever of the others to pursue? Do I not have to prove that I have chased the defaulting tenant?

I have just walked out of small claims court where ex-tenant A (of a joint and several tenancy) sued me for compensation over some repairs, they lost. Previously ex-tenant B (of the same J&T tenancy)has withheld rent, I should have counter-claimed on the above compensation case but I didn't understand the process. Now a bit wiser I feel like suing tenant A as I know they have money and have peeved me somewhat.

jeffrey
15-04-2010, 15:34 PM
First: what do you understand by the phrase 'joint and several'? Do tell.

toys19
15-04-2010, 15:40 PM
First: what do you understand by the phrase 'joint and several'? Do tell.


Ummm I don't really understand, I guess I feel that it must be a bit naughty to pursue one of the tenants just because they have irritated me..
Having just been court today with tenant A and her parent I feel sure that when/if I go to court again with Tenant A and her parent then they will raise this previous case and claim that I am perusing them out of vengeance..


What was I supposed to answer?

jeffrey
15-04-2010, 15:47 PM
That 'peruse' does not mean 'pursue'?! Seriously, I urge you to learn more about the 'joint and several' concept. If you can't or won't, stop acting for yourself and engage someone else professional who can or will.

toys19
15-04-2010, 15:59 PM
That 'peruse' does not mean 'pursue'?! Seriously, I urge you to learn more about the 'joint and several' concept. If you can't or won't, stop acting for yourself and engage someone else professional who can or will.

Sorry poor spelling, funny when writing with a pen I spell perfectly..
Thanks for your advise. I think I do understand the concept, joint means everyone and severally means any of them individually. It's the application of that concept I am unsure about. So I can just go ahead an start chasing tenant A without fear of losing because of my vengeance issues?
I represented myself successfully today, but only after much searching of these pages and others.

jeffrey
15-04-2010, 16:04 PM
Read all about it here: http://encyclopedia.thefreedictionary.com/Joint+and+several+liability

Lawcruncher
15-04-2010, 22:04 PM
Is it time for a different regime to apply to student lettings?

mind the gap
15-04-2010, 22:38 PM
Is it time for a different regime to apply to student lettings?

What did you have in mind?

westminster
15-04-2010, 22:45 PM
Is it time for a different regime to apply to student lettings?
Why? They are no different to other adults, either of the same age or older; everyone has access to the same information regarding the law, whether they are in higher education or not. And arguably, students are better placed to research their legal liabilities, with free internet access and student housing advisors at their fingertips.

Lawcruncher
15-04-2010, 23:46 PM
The risk lies with the remaining tenants, or more likely their parents. Parents are in effect being asked to guarantee people they do not know. It cannot be easy to find a replacement mid-term because everyone is fixed up. It is not at all like trying to find a replacement in the "real world". If students drop for whatever reason out the risk should be with the landlord, or at most with the student who drops out or his parents.

mind the gap
16-04-2010, 09:56 AM
The risk lies with the remaining tenants, or more likely their parents. Parents are in effect being asked to guarantee people they do not know. It cannot be easy to find a replacement mid-term because everyone is fixed up. It is not at all like trying to find a replacement in the "real world". If students drop for whatever reason out the risk should be with the landlord, or at most with the student who drops out or his parents.

This is effectively what happens if the guarantors insist on only being required to guarantee their child's debts up to a certain amount (which is calculated and expressed in the Deed of Guarantee as a proportion of the total rent, damages etc). The problem is that many LLs/letting agents suffer from tunnel vision/inflexibility and cannot understand this idea; they just say : Oh, no, we've never done it like that before and we're not changing now.' So you either have to agree to guarantee the debts of strangers or risk you child losing the decent property they have found in what may be quite a competitive market.

Plus, many parents of students are not very clued up about the implications of signing Deed of Guarantee. Asa student LL I have had parents view the property with their kids and say 'Yeah, yeah, it's great, we'll have it. Just show me where I need to sign'. I have to work quite hard to persuade them to take away the contract and read it first.

Lawcruncher
16-04-2010, 10:15 AM
The snag is that with joint liability even if a parent guarantees a proportion, the guarantee does not fix on any proportion payable by any particular person. So, if your offspring pays his "share" his guarantor may end up having to pay someone else's offspring's share.