Guarantor not paying rent and bailiffs are backlogged?

by Readers Question

11:31 AM, 26th October 2016
About 2 years ago

Guarantor not paying rent and bailiffs are backlogged?

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Guarantor not paying rent and bailiffs are backlogged?

My tenant who is on benefits is in arrears and the guarantor is not paying the rent. Do I take legal action against,the tenant or guarantor?debt collection

I have been granted order of possession by the court and the council have told tenant not to move out until a bailiff knocks on the door.

I have now applied to the court for bailiff but understand Bow county Court has a 4 – 5 months backlog for a bailiff to be sent.

What should and can I do about recovering rent arrears please?

Karuna



Comments

Neil Patterson

11:34 AM, 26th October 2016
About 2 years ago

Hi Karuna,

Please see our page from the Sheriffs office on enforcing judgements as it sounds like you may need their assistance.

Ravi gupta

13:23 PM, 26th October 2016
About 2 years ago

Hi Karuna,
First of all, hope the guarantor has some assets. You apply to the bailiffs for possession.
Demand all the money owed plus all the expenses and damage done to the property. Does not matter if you have to wait longer than its needed,as, you count the rent to the day you get your property back officially. If the tenant does not reply you write to the guarantor telling them you will take the matter to the court and they will incur further court costs. And if still no luck apply to the money claims court. Don't forget to add all the interest accrued, I believe the present rate is 8%.
If the guarantors are sensible they will pay you without you taking any further action. Check if they got any assets ie. do they own their own house.
Good Luck

Mandy Thomson

13:35 PM, 26th October 2016
About 2 years ago

Hi Karuna

To speed up the eviction, you can transfer to the High Court. The first step is to make an application to the County Court on form n244 https://formfinder.hmctsformfinder.justice.gov.uk/n244-eng.pdf .
In box 3, put:
"On the [DATE] a possession order was granted to [CLAIMANT'S NAME], the tenant [TENANT'S NAME] has not left the property by the date stipulated. The order states the right to ask the court, without further hearing, to authorise a High Court Enforcement Officer to evict the tenant. I have been advised by the court that the County Court Bailiffs will be unable to carry out the eviction before [DATE]. I therefore request that the Judge permit that the case be transferred without delay to High Court Enforcement Officers for enforcement purposes, as covered by Section 42 of the County Court Act 1984, to prevent further loss of rental income, which is currently over [£ ]. "

Once you have permission, you will need to appoint a high court enforcement officer https://www.hceoa.org.uk/members/authorised-members-directory. The Sheriff's Office have a good reputation and they have produced a useful guide to the whole high court process here: http://thesheriffsoffice.com/articles/the-new-court-process-for-the-eviction-of-residential-tenants

As for who to pursue for the arrears, assuming the guarantee document that the guarantor signed covers the amount of the arrears, you would be more certain of getting your money from the guarantor. If you don't know how to find them, employ a tracing agent.

Karuna Sivajoti

13:37 PM, 26th October 2016
About 2 years ago

Thank you Ravi.
Does it matter that the tenancy is now a periodic tenancy?
How do I apply to the money claims court? Is this done through a solicitor?

Karuna Sivajoti

13:53 PM, 26th October 2016
About 2 years ago

Reply to the comment left by "Mandy Thomson" at "26/10/2016 - 13:35":

Thank you Mandy.
I think it may be too late to apply for a High Court Enforcement officer as I have already applied for a bailiff from Bow County Court. I am told by the letting agent that they currently have a 4 -5 months waiting time for a bailiff!
I know the guarantor has a good job and assets so makes sense to pursue him.

Gunga Din

16:00 PM, 26th October 2016
About 2 years ago

"If the tenant does not reply you write to the guarantor telling them you will take the matter to the court and they will incur further court costs."

I had exactly this last month. I was lucky. The guarantor (parent) dragged their heels at first, but the threat of further costs and mounting rent convinced the guarantor to clear out the flat, leaving it very clean. Now they are paying me back part of the rent monthly by standing order. There are SOME decent, sensible people out there.

Ravi gupta

16:09 PM, 26th October 2016
About 2 years ago

Reply to the comment left by "Karuna Sivajoti" at "26/10/2016 - 13:37":

One you get the possession, you go on the internet and log in to money claim on line, I find it quicker and cheaper.
You will get a hearing date from your local court. As,I said count all the expenses including the court costs. If you down load a leaflet EX302 How to make a claim, explains how to calculate interest and what to write to claim interest Also a leaflet EX301 Making a claim. You can not go wrong.

Gary Nock

17:56 PM, 26th October 2016
About 2 years ago

Please check a few things before taking the guarantor to Court:
1. In addition to signing a copy of the tenancy agreement, or the actual tenancy agreement, the guarantor should also have signed a Deed of Guarantee, duly signed and witnessed. It should include a proviso that the guarantor is responsible for rent and "mesne profits" WHILST THE TENANT IS IN OCCUPATION both under the fixed term and also when the tenancy goes statutory periodic. Copies of the final tenancy agreement, inventory and the Deed of Guarantee should have been sent to the Guarantor immediately after the commencement of the tenancy. They should also have been sent a letter setting out their responsibilities and liabilities with the Deed of Guarantee and advising them to seek legal advice should they not understand it.

2. If not, then at the very least the tenancy agreement should have had a Special or Additional Clause stating the above. If not, the guarantor could argue in court
( and I have seen it done) that they were only responsible as a guarantor during the fixed term and did not agree to be a guarantor for any additional periodic tenancy.

1 above is virtually fireproof on guarantors; 2 is a "maybe" depending on the County Court Judge if the Claim is defended.

Jamie M

18:50 PM, 26th October 2016
About 2 years ago

You get the ccj and then take recovery action against the guarantor claiming all rent arrears costs and interest.

Karuna Sivajoti

19:30 PM, 26th October 2016
About 2 years ago

I would like to thank everyone that has given guidance and commented,it's very helpful. Sounds like I should be able to recover rent arrears from the guarantor. Just need to decide if I should use a solicitor or do as Ravi suggests and DIY it?
Once again,thank you all.

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