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Katydid83
29-09-2011, 08:26 AM
Hi
Just wondering if anyone has come across this before. A guarantor is claiming that the guarantee agreement has been forged. I will give you some background points on this:

1. Tenant is in arrears which is why this has all come to light
2. The guarantor admits to signing the initial 6 month guarnatee agreemetn but claims upon renewal for the tenant the new 12 month guarantee agreement has been forged, she claims by the tenant
3. We send the guarantee agreements to the guarantor direct and not to the tenant with a SAE to return back to us.

I have contacted our solicitor who thinks we should proceed as usual assuming that she is the guarantor, basically ignoring her claims.

Just wondering if anyone has come across this in the past? This is a 1st for me thats for sure!

Thanks
K

tacpot
29-09-2011, 09:26 AM
Has your solicitor offered any advice as to how you will refute this allegation in court?

I would have expected that a judge would want to see a reasonable amout of effort put into investigating her claim;

. Do you have any way of proving that the agreement was sent directly to the guarantor, or that it was returned it in the SAE?
. Can the garantor explain how/why the agreement AND envelope were passed to the tenant?
. Do you still have the SAE?
. Did you check the signatures closely upon receipt?
. Do you think the signatures are the same now that the validity of the second one has been questioned?
. Has a handwriting expert examined the signatures and given an opinion?
. Is the relationship of the tenant to the guarantor such that you would expect the tenant to have access to a copy of the guarantors signature (or do you know that a document signed by both is in the possession of the tenant, e.g. the tenancy agreement)

LesleyAnne
29-09-2011, 09:37 AM
What sort of guarantor agreement did you use? I am not legally experienced, but have seen many posts here relating to guarantor problemss and the "agreement" needs to be drawn up as a legal deed document to be enforceable. If the document was not done properly it would not stand up in court anyway, regardless of whether signed or not!

Katydid83
29-09-2011, 09:56 AM
Thanks for all of the advice. My solicitor did mention we would need to prove in court that the guarantor agreement was not forged, I didnt think this would be our responsibility but I guess it is! I dont have any SAEs etc as the signatures look very similar, first glance the look the same but on further inspection it could most definitely be forged. It looks like we will get the money but it still makes me uneasy until the money is in our account.

Lesley Anne - do you know where I can find an example of a 'legal deed' guarantor agreement?

Thanks

MrJohnnyB
29-09-2011, 10:01 AM
Thanks for all of the advice. My solicitor did mention we would need to prove in court that the guarantor agreement was not forged, I didnt think this would be our responsibility but I guess it is! I dont have any SAEs etc as the signatures look very similar, first glance the look the same but on further inspection it could most definitely be forged. It looks like we will get the money but it still makes me uneasy until the money is in our account.

Lesley Anne - do you know where I can find an example of a 'legal deed' guarantor agreement?

Thanks

If the item was not witnessed then you don't have a leg to stand on.

I received a "Guarantor" form for my brothers uni accomodation. It basically was the most unenforceable thing I've ever seen, not able to see tenancy agreement etc. Tried explaining this to the people but they didnt really understand.

Katydid83
29-09-2011, 10:04 AM
There is a witness on the agreement which claims she was forged as well. We as standard send out a copy of the TA with the guarantor form so the guarantor knows what they are getting themselves into by signing the agreement! We deal with a lot of students and parents, we like to count each year how many times we need to explain it to a guarantor. I think in hindsight I will draw up an explanation document!

jjlandlord
29-09-2011, 10:15 AM
If the guarantor is, say, the parent of a student and (s)he claims that the guarantee is unenforceable because the signatures were forged, I would reply that in that case the police is going to be involved with potential arrest of their son/daughter... Might make them prefer pay the debt.

MrJohnnyB
29-09-2011, 10:17 AM
There is a witness on the agreement which claims she was forged as well. We as standard send out a copy of the TA with the guarantor form so the guarantor knows what they are getting themselves into by signing the agreement! We deal with a lot of students and parents, we like to count each year how many times we need to explain it to a guarantor. I think in hindsight I will draw up an explanation document!

Sounds to me as though the Guarantor is being foolish. I would suspect, on the balance of information you've provided, they could end up in major doo doo over this. If they've forged a signature then its deception which is a criminal offence if the guarantor is lying about it being forged then its perjury.

tacpot
29-09-2011, 13:00 PM
I had completely forgotten that the Guarantor agreement needed to be executed as a Deed, and therefore had to be witnessed. Did the same person purportedly witness the second deed/agreement?

I would get in touch with who ever has witnessed the Guarantor's signature, and explain you are about to go to the police and want to know whether their signature has been forged as well. They will probably either tell you who signed the second deed as the Guarantor (the tenant, or the Guarantor or a third-party) or that their signature has been forged as well.

Your solictor should be consulted before you do anything though.

Interlaken
29-09-2011, 13:05 PM
Katy - next time ensure Guarantor signs deed (they are lengthy) in front of you and arrange witness to be present. Bullet proof.

Lawcruncher
29-09-2011, 16:13 PM
Katy - next time ensure Guarantor signs deed (they are lengthy) in front of you and arrange witness to be present. Bullet proof.

That may be fine to establish identity of guarantor, but leaves you open to various accusations.

Paul Gibbs
29-09-2011, 17:36 PM
Strictly speaking the guarantor agreement does not have to be by deed. The key point is showing that G knew what they were guaranteeing and that there is valid consideration. Consideration can often be shown by the mere fact that LL has allowed T to move in.

Solicitor should suggest joint instruction of a handwriting expert to consider both the original agreement (which G admits signing) and the later agreement. Total cost is probably around £500 so for £250 you know whether you can pursue G.

If G refuses the joint instruction you can instruct the expert and pay their fees in full.

You could choose to call G's bluff and issue the claim. If he then raises the forgery issue request a direction for a single joint expert.

bhaal
30-09-2011, 02:09 AM
I agree with Paul. It is certainly possible to have valid consideration for a guarantee based on nothing more than the landlord granting a tenancy. The practical problem with not executing a guarantee as a deed is that it will have to be done before the tenancy agreement is signed, as past consideration is no consideration.

This issue seems particularly acute in student accommodation where the practice in some towns is to sign up to a tenancy for the following September by March or April. Using a Deed allows you to sign up tenants and then have a guarantee executed before they move-in to the property without worrying about it being unenforceable.

mind the gap
30-09-2011, 04:21 AM
Having the G sign the Deed in front of you is fine if you all live locally, but it this not always practical for the parents of students - for some parents (or for the LL) that would involve a round trip of up to 1000 miles for each student in the tenancy. A phone call to the G from the LL to ensure they have read the TA and G info, understand the commitment and are happy to sign it, is always good idea, though. I quite enjoy these phone calls, actually, because I'm interested in people (nosey, you might call it!) and I like to feel I know something about the students I'm letting live in my property. Their parents often give you their child's entire life history and a good sense of what makes them tick.

It is always best in the case of a Deed of Guarantee (compared with a Tenancy Agreement, for example), to have it drafted by a lawyer/legal drafter so that it is fit for purpose and is more likely to be watertight if it ever came to court. This is because (as I understand it) of the inherently fragile/unequal nature of the G-LL relationship (the LL gets something tangible out of the contract; the G, arguably, does not). I assume this is why, in OP's case, s/he is having to try to prove it is genuine.Will the G try to claim that the LL forged the Deed, do you think?

Over the years I too have signed a number of G 'Agreements' for my children when students which, had they ever been used in court, would have failed, I'm sure. I too have pointed out the basic failings of these documents to letting agents, who have seemed unconcerned : 'Oh, it's just a formality', 'It's the one we've always used','We're not planning on taking your to court', etc.

Interlaken
30-09-2011, 06:04 AM
That may be fine to establish identity of guarantor, but leaves you open to various accusations.

Can you expand on that LC? Do you mean some sort of bullying? I do see MTG's point about long distance lets but the 2 times I have used a guarantor I have taken time out to meet them in person and discuss the proposal. Luckily it all worked out fine but had things gone wrong I would have known who I was dealing with.