Agent won’t chase deceased Guarantor in Joint and Several Contract?

by Readers Question

8:52 AM, 9th March 2016
About 3 years ago

Agent won’t chase deceased Guarantor in Joint and Several Contract?

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Agent won’t chase deceased Guarantor in Joint and Several Contract?

Basically I’m in a student house in Leeds, trapped in a joint and several contract with one house mate paying the first months rent (back in august) and then refusing to move in, we have not been able to fill his room so are now stuck with his rent. The letting agency refused to chase his guarantor as she died last summer and considered it a “sensitive” issue, they have since finally received the death certificate for his guarantor last week.RIP

A clause in their guarantor contract states that the guarantor will not be released from the contract even if they are deceased, so I would argue that the letting agency chase this money through the guarantors estates, and not the 5 remaining people in the house, who have paid their rent on time every month! However, they have refused to do this and have decided to take us to court, is there any way that we could argue a case in court that the letting agency should be chasing this debt through their own clause in the guarantor contracts?

Any advice would be welcome.

Sam



Comments

Neil Patterson

8:54 AM, 9th March 2016
About 3 years ago

Romain Garcin

9:49 AM, 9th March 2016
About 3 years ago

It's seems bonkers to enter a joint-tenancy with 5 other people that you presumably do not know very well...

Anyway, as you are all joint-tenants you are all liable for the full rent. They is legally no such thing as "your" rent.

If the rent isn't paid, they can take you (and that means any of you, or all of you jointly including the one who did not move in) to court if they wish.

Usually, they will go after what is perceived as the easiest target.

You have no leg to stand on.

Kelly Joanna

12:49 PM, 9th March 2016
About 3 years ago

The answer is in your question. You are all 'joint and severally' liable, meaning, you are all responsible for making up the shortfall. To imply the agent should make a claim on the estate is rather far fetched, seen as probate takes months, sometimes years to be established.
You would be more sensible to split the deficit between the remaining house members, rather than allow this matter to be brought to the court; you will end up collared with the court fee's as well. You don't have a case, as stated by Romain also.

Charles King - Barrister-At-Law

13:02 PM, 9th March 2016
About 3 years ago

Hi Sam. I presume you have the defaulting tenant's current address and the (former) address of the deceased guarantor. You can ask the court to join the defaulting tenant and the deceased guarantor to the claim for the unpaid rent by filling in a form N244, explaining the situation briefly, and submitting the form to the court asking that they both be named as Defendants (in the case of the deceased guarantor you would have to name them as "The estate of [name] (deceased)". I assume the defaulting tenant signed the tenancy agreement. If so he and his guarantor would usually be liable. If you don't have the addresses it is much more difficult. Also there is a charge for submitting the N244 application - but as you are a student you may be on a low income and entitled to a court fee remission. You won't get a remission if you have recently received a student loan or grant payment, which counts as income. It's rather sad that money obtained by way of loan counts as 'income', but there you are. You may find that the estate would rather discharge the debt than face further delays in the distribution of the estate. Otherwise, as the other commentators have said, joint liability is just that. I hope this helps a bit. The situation is extremely common. Good luck!

Luke P

13:43 PM, 9th March 2016
About 3 years ago

The five of you now need to view this as though you've had a rent increase mid-tenancy.

Simon M

20:57 PM, 9th March 2016
About 3 years ago

Sam,
Others have already given you a blunt assessment. As Charles has said, the problem of students not turning up for the next academic year is common.

I hadn't heard about form N244. If your missing housemate or the executor live in the UK, contact them to explain you have to include them both as defendants. Ask them if they can help you to pay the rent due. The prospect of the court proceedings may encourage the executor if not the tenant to pay some or all of the amount due.

It may help to explain your landlord's view. They have invested money and time in the house, and have decided the amount of rent for the house as a whole - not as a share for each room. The contract is intentionally joint and several to avoid just this situation otherwise the landlord loses income.

For the same reason student house contracts are always for a fixed term so the landlord isn't left with the costs of an empty house until the next academic year starts. You haven't mentioned if your contract is for the academic year. Check it - if it is, you cannot give notice and move out.

If you act quickly, you could still reduce your loss:
- Advertise on student notice boards- important it should be at a low rent. Although you'll be subsidising it, it will save you some money.
- Ask around - the more people who know there's a cheap room going, the more chance someone who needs a room will find out.
- Contact all the college and union accommodation services around. Explain why you're keen. They may have someone who needs a place at short-notice.

You should do all these things now, this week. You might find someone for the start of next term. Good luck.


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