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10:55 AM, 16th November 2014, About 10 years ago 7
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Brief outline:
We rented a property to a working couple with children, they paid the deposit and provided a rental guarantor in the name of the father of the male tenant.
They paid the rent direct into our bank account via internet banking.
The tenancy started ok, then a payment went missing, I followed this up and was told it had been paid into the wrong account, next month the same happened. Again I met the tenants and they seemed genuine.
A few months later and we are up to 4 months in arrears, I meet with the tenant and agree an action plan to recover the monies from the wrong account and to keep the rent up to date. I provide them with a paying in book so they have the correct details to hand at all times.
Around Christmas time the same situation occurs and the rent has gone missing, on contacting the tenant, the same reason is given, the money has been paid into the wrong account.
I then receive a payment of four months rent and a letter from the tenant explaining how they will repay the remainder.
The couple part ways and the male tenant promises to meet the rental obligation and pay off the outstanding arrears.
Then he disappears off the radar and she is left with the rental obligation, and unbeknown to me makes a claim for HB. This seems to be going well and the rent is coming on time. However, every time I talk about the arrears and chasing the bank to get the money back from the misdirected payments I am told that the person who received the funds has not responded.
6 Months on the rent is not paid and I chase up the tenant. I am told that the claim has been stopped and her tax credits have not come and she has not been paid from her job.
Three months down the line with no housing benefit being paid and no tax credit (this is what I was being told by the tenant) I manage to persuade her to leave the property. NB the council wouldn’t talk to me about her claim as I did have her authority to deal with them direct.
Subsequently I have found out that she was in receipt of HB all along and was still trying to claim entitlement for living at the address even though we had taken possession.
Having instructed debt collectors to chase the tenants for outstanding rent, the collection company tried pursuing the tenants. Letter at her new address returned not known, once I knew the address I took a picture of her car at the address proving that she was contactable.
The debt collectors, having no joy with the tenants, then move on to the guarantor.
I have just received a letter from the guarantors solicitor via the debt collectors:
Unfortunately the guarantor has died and now his wife denies that the signature is his, in addition the tenant is volunteering that she forged the signature of the witness on the guarantee form. The solictor’s are suggesting we employ a handwriting specialist to determine the signatures validity.
I am 50/50 on the truth in this as I know the guarantor, did guarantee an HP agreement for a new car about a year/year and half into the tenancy. I am of the opinion this is a ruse to get out of the legal obligation he signed as a guarantor now his is no longer alive.
I have spoken to a friend in the police who has suggested I make a complaint of fraud against the tenant as the tenancy would not have been given if the guarantor document was not signed.
At the moment I don’t know what the best avenue to take as I wish to recover outstanding debt.
Any professional suggestions would be appreciated.
Many thanks
David Atherton
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Mark Alexander - Founder of Property118
10:59 AM, 16th November 2014, About 10 years ago
Hi David
Two choices as I see it, you could choose both, I would:-
1) Sue the estate of the guarantor
2) Begin a private prosecution against the tenant - this is likely to be most effective, both in terms of cost and pressure to pay up
I have invited Mark Smith (Barrister-At-Law) to comment.
Meantime please see >>> http://www.property118.com/private-prosecutions/69701/
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Robert M
13:32 PM, 17th November 2014, About 10 years ago
Hi David
I had a very similar situation about 8 years ago in that I granted a tenancy to a woman, her partner, and her four children, with her ex-husband as the rent guarantor and her father as the witness. It turned out that her four children lived with their father so she was not entitled to Housing Benefit for a 4 bed house so she did not make a claim and did not pay any rent. I eventually evicted her. However, when I came to trying to recover the arrears from the guarantor, he denied that it was his signature.
I reported it to the police as a fraud, they went to speak to the guarantor but he refused to make any statement against his ex-wife so the police said they had insufficient evidence to prove that tenant had committed a fraud, and the case was dropped.
I took the guarantor to court for the debt, and he turned up with the "witness" (tenant's father), and in court the guarantor denied it was his signature, and the witness denied it was his signature, but neither of them would say anything about the tenant possibly committing a fraud. The case was dismissed as I could not prove that the guarantor was liable.
Thus, I would disagree with Mark as to what your choices are:
1. suing the guarantor's estate is impractical as the man is dead and you have no evidence that it is his signature, so the case would be dismissed.
2. suing the tenant, yes you could do this, and get a CCJ against her, but if she is in receipt of benefits then you are left with no effective means of enforcing a CCJ.
3. you could do a private criminal prosecution of the tenant on the basis of her fraud, but she can say the guarantor did sign, and the guarantor's wife says he didn't, and you cannot prove one way or the other, so this is very likely to fail.
4. Even if you did the criminal prosecution, it does not necessarily result in you getting paid the money owed to you.
Whatever course of action you end up taking, if it does result in you getting paid the debt owed to you, then please post the details on here so we can all learn from it.
Mark Alexander - Founder of Property118
13:56 PM, 17th November 2014, About 10 years ago
Reply to the comment left by "Robert Mellors" at "17/11/2014 - 13:32":
I took it from David's original post that the solicitor of the deceased man's wife has put it in writing that the tenant admitted to forging her now deceased fathers signature. That being the case this is very strong evidence of a crime having been committed.
My suggestion of a private criminal prosecution is to bring pressure to bear on the tenant and indirectly, her mother too. When faced with the prospect of a prison there is a strong likelihood that either the tenant will offer to pay the arrears and the acting criminal barristers costs up to that point, or that her mother will do so to keep her daughter out of prison. If that happens it would make sense for the case to be dropped in the interests of the public purse.
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Romain Garcin
14:18 PM, 17th November 2014, About 10 years ago
One piece of advice I once got (I don't have experience on the issue), and which appears wiser every time I read a new story on guarantees, is to require that the signature be witnessed by a solicitor, away from the landlord.
That cuts short any later arguments about forged signatures or undue influence.
David Atkins
19:08 PM, 17th November 2014, About 10 years ago
Can you put this tenants details on Landlord Referencing? I don't want to be the next landlord to give her a tenancy.
david watford
22:57 PM, 17th November 2014, About 10 years ago
hi thanks for taking the time to read my dilemma
having read your comments,
I looked again at the letter from the solicitor as they are awaiting a reply from me via the debt collectors.
The tenants admits to the guarantors wife (her mother in law) that she forged the witness signature, however it doesn't say who signed the guarantor signature.
I really want to get a statement signed by the tenant at the solicitors office confirming that she did indeed forge the signatures on the guarantor form. i think if i word my reply carefully and let them suggest this as a way of getting their client off the financial hook. then i will have the evidence to go to court for fraud.
At the moment the way i read it, the letter from the solicitor is ambiguous and suggestive but no way conclusive as they cover their tracks by suggesting the appointment of a handwriting expert if we wish to go to court.
Which suggests they know its not as clear cut as they portray it.
I didn't want to fire off a reply with really thinking the best way to play this.
Mark Alexander - Founder of Property118
0:37 AM, 18th November 2014, About 10 years ago
Reply to the comment left by "david watford" at "17/11/2014 - 22:57":
If the tenant is admitting that she knew the guarantors signature was a forgery then she has knowingly committed a fraud by using it to secure a tenancy.
It matters not a jot that the forger has not been named, but if she does admit to the forgery too that's even more damning for her.
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