Withdraw from being Guarantor

Landlord Discussion
1

A close relative and his new partner moved in together. I agreed (I understood the risks) to be guarantor. Fixed term for 6 months. They are both joint contract holders and have been in occupation for 4 months.

They’re now separating, and it’s messy. It’s very likely that my relative will move out and that his new partner will remain. I have no desire to remain as guarantor for her in those circumstances.

I knew going in that I have no rights to withdraw as guarantor should this happen, but now the worst has happened, I don’t want to do nothing at all. I haven’t been in this position before, so I wonder if this group has any advice?

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@Mark166

My understanding of your situation is if your relative serves a valid notice to leave, it will end the tenancy for both tenants and you will no longer be a guarantor. The landlord would then have the option to create a new tenancy with the remaining tenant or find new tenants.

Good luck!

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3

@Mark166 your relative will move out so the tenancy agreement will need amending anyway - otherwise your relative still liable for the rent.

Fixed terms are no more as part of RRA so she can end the tenancy by giving notice which is easiest solution. This is at least 2months to end on the day before a rental period (so if this run from 1st of each month, the notice needs to end the day before) unless a shorter notice agreed otherwise with the LL (who may or may not offer a new tenancy to other tenant). Other tenant doesn’t have to agree as no longer part of a fixed term tenancy. They also have to figure what will happen to any deposit refunded if both contributed to it

Once tenancy ended you are free !

Good luck

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Thank you, this is very useful. How does my relative trigger the need for a new tenancy? Is there a notice period in doing so?

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Id suggest you read the tenancy agreemnt for notice requirements.

That said with the introduction if the RRA on 1st May, you should assume the Landlord will require what it says a default;

You will be able to end the tenancy at
any point by giving your landlord notice.
This must be done:
• so the tenancy ends on a day when the rent is due or the day before the rent is due
• in writing, for example, by letter
or email
You will need to give your landlord at least 2 months’ notice. You can agree a shorter notice period with the landlord in writing, as long as any other tenants named on the tenancy agreement also agree

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@Mark166

Your relative gives notice to the LL to end the tenancy. See the tenancy agreement for how to do so and the notice period. If it doesn’t say then the default under RRA is at least 2 months notice to end on the day before rent would be due. The LL can’t require more than that (and could agree to less if it suits them and the other tenant to start a new tenancy earlier)

Shelter have detailed advice on how to give notice - the notice period starts when the LL receives it and it is good to get receipt/confirmation it’s been received if sent by email

Good luck

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Out of curisity @David240 have you found something that specifically says that what is in the tenancy agreement overalls the 2+ months in the RRA, or does the RRA overule a shorter notice period in the AST?.

I appreciate the RRA says ‘agree in writing’, but does that specifically mean the the AST, or does it mean you can leave sooner if agreed in writing when they give notice - eg “Your notice is invalid but I choose to accept it and you can leave early”.

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@Karl11 well I understood a tenancy can be ended at any time by mutual agreement (eg deed of surrender) just as before (just like a tenant can voluntarily pay rent early). RRA is about what can be enforced via a contract.

I’ll check and @David122 may know more but my understanding was RRA prohibited LLs from requiring more than 2 months notice (plus time to end on day before a rental period) basically ending fixed term tenancies of 6 months or 12 months etc. so they aren’t tied in even if their circumstances change (breakup etc). RRA doesn’t say you can’t have a shorter notice period in a tenancy agreement (which gives tenants more flexibility and ties them in even less). So clauses in an AST with a shorter period eg if a rolling 1 month tenancy already wouldn’t be invalid or void as they aren’t contrary to what RRA says, and would still apply.

The govt guidance says

“Your tenants will be able to give 2 months’ notice to end the tenancy at any point, unless you have agreed a shorter notice period”

So clearly you can agree a shorter period and that can be valid. I don’t see why agreement in the existing AST of 1 month notice (say) wouldn’t count as having agreed the notice in writing with the tenant, or why it would be overriden by RRA which only applies the default 2 months when there isn’t anything in the existing agreement ie “if the tenancy agreement does not say” below- the latter implies the tenancy agreement can say something lower - but @David122 may know more.

I guess it’s possible that because the clauses about 1 month notice were typically about break clauses or after a fixed term had ended they might be null and void because of that (ie because fixed terms are no more) so could be unclear. So def a good idea to get agreement post 1 may with tenants of what the new notice periods should be.

More of the guidance below.

If as LL you previously had tenants on rolling periodic 1 month and now tried to hold them to the 2 months they would point to existing AST as a signed written agreement setting out 1 month notice periods. Maybe it will happen and a judge will rule on what Parliament intended. For one month’s extra rent personally I wouldn’t chance it and would want to agree now with tenants what they and you expect re notice periods.

Best

If your tenant wants to leave

The tenancy agreement should say how much notice your tenants need to give before they can leave the property.

The maximum notice you can ask your tenant for is 2 months.

If the tenancy agreement does not say how much notice your tenant must give, they will need to give at least 2 months’ notice.

You can agree with your tenant to end the tenancy earlier or have a shorter notice period. This will need to be in writing.

Your tenant must give their notice:

  • so the tenancy ends on a day when the rent is due or the day before the rent is due

  • in writing, for example, by letter, email or text

You cannot tell your tenant how they should give their notice.

Your tenant will need to continue to pay rent during the notice period before the tenancy ends.

They can move out early without paying rent for the remainder of the tenancy if you agree to this.

If your tenant has given notice but changes their mind, they can only stay if you agree in writing.

If you do not agree, the tenancy will end as planned.

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& ironically, the Government guidance you copied there provides the biggest contradiction. How are people not supposed to be confused…:confused:

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@Karl11 agree it’s not the easiest to follow tho not actually contradictory- would be better if it said

"The maximum notice you can ask your tenant for is 2 months

If the tenancy agreement does not say how much notice your tenant must give, they will need to give the maximum ie 2 months’ notice"

It’s confusing because 2nd statement alludes to issue of tenant giving notice mid month (so has to give over 2 months to allow for paying on day before rent payment day) but 1st even same applies

And if it had a couple of examples showing what is and isn’t allowed that would help. However I get that examples throughout the guidance would double its length.

Best

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“so the tenancy ends the day before the rent is due or the day the rent is due” … strange that it’s worded like this … so which is it ?

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@!

This is the official govt guidance I assume it’s either, as written.

Might be something to do with tenancies starting/ending at midnight I guess

Best

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I just think it’s terribly drafted. The day before or the day due are definitely 2 different days and the day the rent is due is the start of a new tenancy/rental period. That said , it is what it is , what can you do.

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@David79 suspect it’s drafted that way to be legally correct if midnight issue tho there are other bits where not so precise (sometimes ‘2 months’ when describing max notice a LL can require and "at least 2 months’ when describing same notice given by tenant)

What we can do is write to our LL association (s) pointing out wherever Guidance is unclear or would benefit from examples and hopefully they will write to gov with a full list - or write yourself if you are extra keen.

My concern is the 2 months - openrent APT doesn’t make clear LLs can only require this as a max and doesn’t even specify what the notice actually is (so the 2m becomes the default) and others such as Savills. Savills UK | Serving notice changes also say tenants must give 2m min.

This will unnecesarily drive the market to a 2m default (rather than 1m at present/previously as large numbers of tenancies will have become periodic previously with 1m notice). This will make moving harder and more expensive for tenants and LLs (longer voids or tenants pay for 2 places at same time for longer) which is no good for anyone

Best

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& how is ‘over 2 months’ not contracting the line before which says ‘maximum 2 months’?

Anything ‘over’ will always be more than the 2 month ‘maximum’.

I know what the guidance says. The fact is, its going to involved much confusion for both landlords & tenants.

How if a tenant gives notice mid month, can you ask for 2m plus a few days to align with the rent payment date, as they will say “Its a maximum 2 months”!

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@Karl11 it doesn’t say ‘over’. Re read it.

And yes I’ve already said the guidance isn’t very precise in this bit as the legislation does also (in more detail) say 2 months to end on the day before rent payment/end of rental period.

If a tenant tries to end mid month we have to point to more detailed bits saying they pay up to the end of a rental period to explain why they pay for 2 and a bit months (just like we had to previously with the old AST contracts actually)

Think we are all agreed could be clearer, some examples would help. But as it’s same as previous (OR at least).ASTs where tenants couldn’t just give notice and end mid month they had to pay up to end of rental period it’s not a change so that aspect shouldn’t cause too much of a problem.

Best

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17

Good luck but the person below is correct im a renter myself but they are right goodluck .

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18

Its always been both. A tenants notice could always end on the last or first day of a tenancy period by case law.

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19

Its not a maximum 2 months. Its a maximum 2 months ending on the first or last day of a tenancy period, which could therefore be up to 3 months.

I agree that this whole area is unclear from the drafting. There is another question that may affect the date, which is amended payment dates such that these no longer align with the tenancy periods. Ive asked the housing lawyer David Smith for clarification and will report back if I get any.

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I know, that’s what Im saying. Its so contradictory, and confusing. Not fit for purpose.

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