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Oct, 2014

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  1. #1

    Default Guarantor to new contract

    I find myself in a confusing situation (as a tenant) and am trying to work out where I stand:

    The original contract was 10 months long, in a shared house with 5 others, we each had a Guarantor.

    The contract ended, 3 Tenants vacated and 3 stayed on under a periodic tenancy.

    After a few months 2 new Tenants where bought in and we signed a new contract, no Guarantor forms where signed this time around, but names where Given. (This contract was drawn up without the Agency, and I am not sure if the old Tenancy was ever officaly ended?)

    The landlord asked for deposits from everyone and apparently transferred my old deposit to the new Tenancy.

    I have now found out my deposit still sits in the original scheme, what should I do about this?

    My main concern is a new Tenant has trashed the house, and then moved out, as no inventory was carried out at the end of the previous Tenancy or at the start of the new Tenancy would I be held liable?

    Also is my Guarantor still liable? Having never agreed to, signed or seen this new Tenancy?

  2. #2
    Join Date
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    Only the first four named tenants on an AST have any lawful liability. As far as the other issues are concerned I think we need a lot more detail about start and end dates of the tenancies. Guarantors don't normally transfer to a new tenancy where the tenants are different from the original.
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

  3. #3
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    Quote Originally Posted by Paul_f View Post
    Only the first four named tenants on an AST have any lawful liability.
    That's not quite the case. The fifth and subsequent tenants may still have contractural obligations and rights.See Lawcruncher's explanation in #3 in this thread:
    http://www.landlordzone.co.uk/forums...ghlight=tenant
    How is education supposed to make me feel smarter? Besides, every time I learn something new, it pushes some old stuff out of my brain. Remember when I took that home winemaking course, and I forgot how to drive? Homer Simpson

  4. #4

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    Quote Originally Posted by Paul_f View Post
    Only the first four named tenants on an AST have any lawful liability. As far as the other issues are concerned I think we need a lot more detail about start and end dates of the tenancies. Guarantors don't normally transfer to a new tenancy where the tenants are different from the original.
    So the original Tenancy started on the 4th October 2010 and ended July 2011.

    The Periodic Tenancy then lasted Through July to October 2011 when the new contract was signed. (When I say signed I don't think all Tenants signed, but all our names where down.)

    The 5th Tenant was "added" to the Tenancy around January 2012.

    The current Tenancy ends in May 2012.

    With regards to Guarantors the LL asked for names and addresses.

    The Estate Agency has confirmed to me that the deposits are still in the original scheme.

    Thanks in advance

  5. #5
    Join Date
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    The original tenancy is no longer in place. It was effectively surrendered.

    Your guarantor's liability will depend on what the document he signed says - but it's unlikely to extend his liability to the new, subsequent tenancy, particularly when he was not given a copy of the new contract.

    If the LL claims for damage, and you and the other tenants dispute the claim, the LL will have to provide evidence of original, undamaged, condition in order to prove subsequent, damaged, condition. Without such evidence he will struggle to prove his claims (either to the deposit scheme ADR, or in the county court), especially if the deposit is still registered against the original tenancy.

    Having said that, although it was another T who trashed the house, all of the joint Ts are jointly liable (for damage and unpaid rent).

  6. #6
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    Quote Originally Posted by mind the gap View Post
    That's not quite the case. The fifth and subsequent tenants may still have contractural obligations and rights.See Lawcruncher's explanation in #3 in this thread:
    http://www.landlordzone.co.uk/forums...ghlight=tenant
    As Jeffrey stated in the last post of the aforementioned thread if he were to be acting for tenant #5 then he would deny that person was a tenant.
    The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

  7. #7
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    He is only saying how he would defend T5's position in the event of a dispute with LL. He fails to add that he couldn't deny T5 would be a tenant in equity and bound by his contractual obligations, so I doubt his defence would work.

  8. #8

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    Quote Originally Posted by westminster View Post
    The original tenancy is no longer in place. It was effectively surrendered.

    Your guarantor's liability will depend on what the document he signed says - but it's unlikely to extend his liability to the new, subsequent tenancy, particularly when he was not given a copy of the new contract.

    If the LL claims for damage, and you and the other tenants dispute the claim, the LL will have to provide evidence of original, undamaged, condition in order to prove subsequent, damaged, condition. Without such evidence he will struggle to prove his claims (either to the deposit scheme ADR, or in the county court), especially if the deposit is still registered against the original tenancy.

    Having said that, although it was another T who trashed the house, all of the joint Ts are jointly liable (for damage and unpaid rent).
    So would the inventory from the start of the original Tenancy provide evidence of the houses original condition?

    How would it work as no moving out inventory was completed on the surrender of the original Tenancy, and no new Tenancy was drawn up?

    The Guarantor agreement does not specify dates, but states the following:
    6. If the tenancy is for a fixed term, then this guarantee applies for the whole of the term and is not
    revocable during that term.
    7. If the tenancy is periodic or has become periodic by agreement or the operation of law, then this
    guarantee may be terminated by written notice by the Guarantor subject to the Tenant vacating at
    the earliest legally permissible date required for possession. If the Tenant fails to vacate on this
    earliest date then the guarantee shall continue until the Tenant vacates.

  9. #9
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    Quote Originally Posted by westminster View Post
    He is only saying how he would defend T5's position in the event of a dispute with LL. He fails to add that he couldn't deny T5 would be a tenant in equity and bound by his contractual obligations, so I doubt his defence would work.
    Precisely. It is a legal nicety with minimal practical implication in the real world.
    How is education supposed to make me feel smarter? Besides, every time I learn something new, it pushes some old stuff out of my brain. Remember when I took that home winemaking course, and I forgot how to drive? Homer Simpson

  10. #10
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    Whilst we can have have an interesting discussion about the legal status of "tenant 5" (indeed we have had such a discussion) the point is that whatever his status there is, apart from the tenancy, a separate contractual obligation between the landlord and all the persons named as tenants in the tenancy agreement.

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