What To Do When A Tenants Guarantor Dies?

What To Do When A Tenants Guarantor Dies?

12:13 PM, 20th May 2014, About 7 years ago 29

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My tenants guarantor has died and I don’t know what, if anything, I should do. What To Do When A Tenants Guarantor Dies

What would other Property118 members suggest?

Can I insist they provide a new guarantor, or can I evict them?

If I evict how should this be done?

Thanks

Fred Jones



Comments

by Fred Jones

13:57 PM, 20th May 2014, About 7 years ago

It appears that no one is willing to be guarantor, including her Nan.

by Mark Alexander

14:00 PM, 20th May 2014, About 7 years ago

Reply to the comment left by "Fred Jones" at "20/05/2014 - 13:57":

Hi Fred

The more I you tell us, the more inclined I am to advise you to evict.

See this page >>> http://www.property118.com/tenant-eviction/39099/
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by

14:02 PM, 20th May 2014, About 7 years ago

Fred

When you are ready I will be pleased to help you to find a new tenant. It will cost you a fiver and I will take care of advertising your property on Rightmove and referencing your future tenants.

Please see my member profile for more details (link above - my name)
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by

14:04 PM, 20th May 2014, About 7 years ago

Reply to the comment left by "Adam Alexander" at "20/05/2014 - 14:02":

PS - no ongoing fees either if you prefer to self manage.

If you want guaranteed rent collection (i.e. you get paid on the due date whether the tenant pays or not) that will cost you 5% of rent.
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by Fred Jones

14:22 PM, 20th May 2014, About 7 years ago

The tenant was serve with prescribed information and signed a section 21 notice at the start of the tenancy, dose this need to be done again?

by

14:34 PM, 20th May 2014, About 7 years ago

Reply to the comment left by "Fred Jones" at "20/05/2014 - 14:22":

You should serve prescribed information again when the tenancy goes statutory periodic. If you don't the section 21 notice MAY not be valid.

Section 21 notices do not expire, therefore, if you have all your paperwork in order you are in a position to seek a possession order via the Court immediately.

In theory you could be fined up to three times the deposit and ordered to refund the deposit as well if you didn't re-serve prescribed information within 30 days of the tenancy going periodic. This is still theoretical and has yet to be tested in the Courts. The ambiguity occurred as a result of the the Court of Appeal decision in the case of Manual Rodriguez vs Superstrike Limited.

It is impossible to get a straight answer regarding the neccesity to re-serve prescribed information because the Superstrike ruling cannot necessarily be applied to all circumstances. The Court of Appeal finally confirmed that a fixed term tenancy becomes a new tenancy when it goes periodic. In the case of Superstrike the fixed term tenancy was pre-deposit protection legislation but the creation of the periodic tenancy was not. Therefore, as no deposit had ever been protected the ruling was reached as we all know it, i.e. the deposit should have been protected when the tenancy went periodic and prescribed information should have been served.

Many lawyers now think (post Superstrike) that deposits should be re-protected and prescribed information should be re-served within 30 days of a tenancy going periodic. My Deposits is a classic example of this as they now cancel protection 30 days after a tenancy goes periodic unless you tell them not to on the basis that the tenancy is now periodic.

DPS agree with me regarding the ambiguity, hence their stance of “it’s up to you what you do, take legal advice”.

The only logical conclusion is to re-serve prescribed information to cover your own back when a tenancy becomes periodic. This is because, when another test case reaches the Court of Appeal or Supreme Courts on the basis that a deposit was protected at first but prescribed information wasn’t served when the tenancy went periodic, the decision of the Courts could go either way. If you have been serving new PI and didn’t need to then you have no worries. If you haven’t been re-serving new PI but should have been then that’s a lot of money you stand to get fined!

Either way, in your case it seems that you missed the 30 day deadline to re-serve prescribed information so the risk of being fined exists no matter what you do. Whilst re-serving prescribed information late (i.e. now) will not mitigate your risk of being fined it will ensure that any defence against possession is foiled if the grounds are failure to issue new prescribed information when the tenancy became periodic.

Sorry for going into such detail but I want you to be aware of ALL of your risks.
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by Mark Alexander

14:40 PM, 20th May 2014, About 7 years ago

Reply to the comment left by "Adam Alexander" at "20/05/2014 - 14:34":

Adam

That's the best description of the ambiguity over the Superstrike that I have ever read.

Well done little brother! 🙂


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by Fred Jones

14:44 PM, 20th May 2014, About 7 years ago

Thanks for the detailed information, I will take it all on-board and make some amendments.
Regards

by Romain Garcin

15:14 PM, 20th May 2014, About 7 years ago

There is no ambiguity in Superstrike regarding the need to re-protect, and the case didn't say anything new regarding a statutory periodic tenancy being a new tenancy.

The decision clearly means that the scheme's initial requirements must be complied with every time a new tenancy is created. Depending on the scheme and the circumstances this can mean from 'do nothing' to 'fully re-protect'.

However, Superstrike did not address the issue of the prescribed information, which is mandated by another section of the Act.
Nevertheless the wording of the Act being essentially the same for both sections the most reasonable conclusion is that PI must also be givem again everytime.
In fact there is anecdotal evidence that this is the way courts see it. See recent post on NearlyLegal: http://nearlylegal.co.uk/blog/2014/05/the-tenant-superstrikes-back/

by Mark Alexander

15:30 PM, 20th May 2014, About 7 years ago

Reply to the comment left by "Romain " at "20/05/2014 - 15:14":

Thanks for that link Romain, the case of Gardner v McCusker 3BM70525 does indeed make very interesting reading.

However, it was only heard at County Court level so no case law has been created by it. I suspect a different decision would be made if such a case was heard in a higher Court - at least I hope it would!

I also read the comments below that blog. There was talk of MP's sorting something out in respect of Superstrike and it's far reaching implication. I fact, I recall significant media interest when the Housing Minister confirmed that the legislation drafting was flawed and needed to be corrected as a matter of urgency. Not very urgent was it - we're still waiting!!!
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