When agreeing to rent to a tenant, it is not unusual for a landlord to ask for a guarantor if the landlord considers that the tenant, perhaps due to their age or instability of income, might be at risk of rent arrears. When required, a guarantor promises to be responsible for the tenant's obligations (to pay rent) if the tenant fails to do so. If a landlord requests a guarantor, it is important that they follow necessary formalities to ensure they can enforce the guarantor's liability in case the tenant defaults or if the landlord seeks legal action for the recovery of rent arrears or damage. In this article, we will provide an overview of guarantors in residential lettings and what a landlord or letting agent must do to add the guarantor to the agreement.
What is a guarantor?
When asking a prospective tenant for a guarantor, a landlord is essentially asking the tenant to guarantee that they will meet their obligations under the tenancy agreement. A guarantor is often required for students, those who do not have a fixed income and if, after credit checks for example, it is known that the prospective tenant has a negative credit history. The guarantor will be liable if the tenant fails to meet their obligations under the terms of the tenancy, for example for unpaid rent or for any money required to repair tenant-caused damage to the property. A guarantor will also be liable if the tenant defaults on payment due to potential rent increases provided there are provisions for increase in the terms of the tenancy agreement. Crucially, a guarantor has no right to end a tenancy agreement, meaning that they will be liable so long as the tenant remains in the property. For this reason, assured shorthold tenancy agreements (ASTs) that require a guarantor often have an initial fixed term.
Typically, guarantors for joint tenants under a joint tenancy agreement will be liable for any of the named tenants if they default, not just the tenant to whom they have a relationship with. So for example if A lives in a house with B, C and D under a joint tenancy and is asked to provide a guarantor (X), X will be liable if B defaults in rent, not just A. Whilst this might seem like an unfair term, this affords the landlord protection if a tenant and their guarantor goes astray and is necessary given the nature of a joint tenancy agreement where tenants are, by definition, jointly and severally liable.
If a tenant cannot get a guarantor, they are not completely at a loss. Some local authorities, councils and charities can provide guarantee schemes that might help with advance payment of rent (mitigating the need for a guarantor) or might step in as a guarantor on the condition that the tenant pays back the funds paid on their behalf. Those claiming housing benefit or universal credit might also be able to apply for a discretionary housing payment, which tenants do not have to pay back.
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What agreements to send to a guarantor
Once the landlord and the tenant agree to enter into a new tenancy agreement with a guarantor, it is important that the landlord has the guarantor's signature to prove the existence of the relationship.
Typically, a landlord will provide the tenant with a guarantor application form to collect their details in order to run any necessary referencing checks on the guarantor in order to accept them. Once a landlord has approved a guarantor, they should send a copy of the tenancy agreement to the guarantor so that they understand the obligations they are guaranteeing and undertaking as a guarantor. A landlord might also want to reference the existence of a guarantor in part of the tenancy agreement. On Legislate, users can simply select whether a guarantor is required for a contract.
The agreement is then consistently updated to reflect this with the following clauses added:
"1.5 The obligations of the Tenant and the Guarantor arising by virtue of this agreement are owed to the Landlord. The obligations of the Landlord are owed to the Tenant."
"15. Guarantee and Liability
15.1 As part of the tenancy agreement the landlord may require the Tenant to complete a guarantor agreement signed by either a parent or a guardian."
However, merely giving the guarantor a copy of the tenancy agreement is insufficient to create a legal contract with the guarantor. A landlord will also need to create a deed of guarantee (a guarantee agreement) in which the guarantor will covenant with the landlord to pay in case of the tenant(s) failure. The guarantor agreement will be specific to the guarantor, stating the guarantor's name, and making the obligations under the agreement explicit. Unlike the tenancy agreement, it cannot only be that the guarantor signs. Given that the guarantor is not getting anything from the agreement, they have not provided consideration, and therefore cannot enter into a standard contract. Instead, they must enter into a deed, which falls under a restricted activity, meaning that for it to be legally enforceable, the guarantor's signature must be witnessed by a third party. Legislate's Deed of Guarantee was made with this in mind meaning that witnesses can be added to agreements as supporting signatures to ease the contracting process.
The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.