Deeds Guarantors Witness Signatures Notice to Quit Possession and Double Rent

This is a good case for showing several issues relating to granting a tenancy, possession proceedings, notice to quit from a tenant, non-payment of rent, witnessing of deeds, and a bit of double rent for good measure. Every single piece of paperwork, from application forms to notices to tenancy agreements, is precisely those found on our website available for Guild members, and this case illustrates the importance of suitable paperwork.

Thompson v Thorpe and Taylor-Thorpe Leeds County Court 13 December 2012 2QT33017

And yes, the Thompson is me if you were wondering.

Background

On 1 July 2011, Miss Carlene Taylor-Thorpe and Jane (not her real name as she wasn’t a party to the case) applied for a tenancy for a property in Harrogate.

The application for accommodation form provided information regarding a home-owning guarantor, which we require for all residential lettings. 

We did the usual checks, including checking that the guarantor was a homeowner, and the credit checks all returned OK. The tenancy was granted from 8 July 2011 for a fixed term of three months at a rent of £450.00 per calendar month. 

The father, Mr Neil Thorpe, was the guarantor and signed the deed of guarantee on the same date. 

Jane, the other tenant, witnessed the deed.

The first month’s rent was paid on signing, and the next two months’ rent was paid on time. However, except for the payment of housing benefits in November of £186, no payments were made between October 2011 and March 2012 when they were finally evicted!

Notice to quit

On 18 November 2011, one of the joint tenants (Jane) gave us notice to quit, which expired on 7 January 2012. 

This was a valid notice to quit because it was (a) at least a calendar month in length and (b) expired the day before the rent was due. 

There was no notice to quit from Carlene Taylor-Thorpe, but the notice to quit ended the entire tenancy because a notice to quit from one ends the tenancy for all Hammersmith & Fulham LBC v Monk [1991] UKHL 6. 

We’re not entirely sure when Jane vacated, but to the best of our knowledge, it was a bit before the expiry of the notice and so left Miss Taylor-Thorpe in occupation on her own.

Requests for payment from the guarantor

In October, when the rent wasn’t paid for the first time, the guarantor was contacted, who stated that he would only pay once we had evicted the tenants. As one can perhaps appreciate, we weren’t impressed by being told when he “chooses” to pay rather than by following the agreed and signed guarantee form. 

The guarantor was reminded that this would be an expensive option (essentially holding us to ransom and dictating when he pays). Still nevertheless, he decided to take that route and refused to pay.

Proceedings part 1

As we never agreed with the guarantor’s suggested payment schedule, we issued a pre-action letter, and then proceedings commenced for £715.40, representing October and November’s rent. (In all honesty, we thought these proceedings would let the guarantor know how serious we were, and he would pay, but it didn’t quite work like that!) 

A default judgment was obtained for the total amount in our favour against the guarantor.

Possession proceedings against the tenant

A section 21 notice was served on the tenants at around the same time as the notice to quit was given to us, so upon expiry, there were going to be multiple options for possession (rent arrears, notice to quit from tenant and section 21 notice). 

Importantly, once the notice to quit from Jane had expired, we never demanded “rent” from the remaining occupier (after the expiry of a notice from a tenant, you must never ask for rent and only seek mesne profits or damages for use and occupation). 

In addition, and equally importantly, we treated Miss Taylor-Thorpe as a trespasser because the tenancy had now ended. Because we were treating her as a trespasser, possession was promptly sought as soon as the courts returned to work in January 2012. 

Possession was ordered to be given on or before 21 February 2012. 

As Miss Taylor-Thorpe remained in occupation on 22 February 2012, a request for a warrant of possession of the land was issued. 

The bailiff was scheduled to attend on 20 March 2012 at 10.15 am. 

On 19 March 2012 (the day before the bailiff), the defendant applied with Harrogate County Court seeking “… suspension of notice of execution … requesting a 42 days suspension …” (This was despite not paying any rent / mesne profits since October!) 

A hearing was ordered for 20 March 2012, which we attended and pointed out that as this was an application seeking to postpone possession under section 89 Housing Act 1980, it was impossible to have a hearing even to discuss the issue because such a hearing must be held “before the date on which possession is to be given up” (in this case, therefore, the hearing had to be held on or before 20 February 2012) [Civil Procedure Rule 55.18]. 

The defendant’s application was refused, and the bailiff attended. 

The property wasn’t in the best state and condition! (The bailiff commented it was one of the worst he’d seen for ten years).

Double rent

Where a notice to quit has been given by tenants, and they don’t vacate at the end of the notice, a landlord is entitled to “… double the rent or sum which … should otherwise have paid … at the same times and in the same manner as the single rent or sum before the giving such notice …” [section 18 Distress for Rent Act 1737]. 

For a landlord to be able to claim the double rent, the notice given must be valid, and the landlord must treat the remaining occupiers as trespassers [Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57]. 

In this case, one of the questions that arose was whether a landlord was entitled to double rent where one of several tenants had given notice even if the others were not aware nor party to the notice to quit. 

For the periods 8 January 2012 (after the expiry of the notice to quit) to 7 April 2012 (after the bailiff evicted on 20 March), we claimed double the rent, so we submitted that an amount of £900.00 per calendar month was payable as mesne profits (damages for use and occupation).

Guarantor payment

After the eviction, the guarantor paid £800.00, which was used to clear the first claim and interest. The remaining £20.20 was deducted from the rent remaining unpaid.

Money claim part 2

After a final debt amount was known after the eviction, proceedings were commenced against (1) Mr Thorpe, the guarantor and (2) Miss Taylor-Thorpe, who had remained in occupation until attendance by the bailiff for the amount of £3,435.00, which included all the rent / mesne profits due (including the double rent) and a few fees that hadn’t been paid less, of course, the amount that judgment had already been obtained previously. 

A default judgment was obtained for the total amount. 

We thought it strange that we hadn’t heard anything from the guarantor despite two county court judgments against him, so we carried out a trace using a tracing service and found that he had recently moved to a different property. 

We, therefore, wrote to the guarantor at the new property, which led to him making an application to set aside the judgment.

Set aside

The guarantor defendant claimed he hadn’t received any of the papers due to being at another address for the past two years. 

This was despite signing the guarantee form, which included the address we used and all the application forms at the time of granting the tenancy containing the address we used for issuing the claim form. 

At the set aside hearing, it was about to be refused to be set aside because we only had to show it had been served on “the last known address”, and there wasn’t any great prospect of success. Still, we agreed to it being set aside due to the importance of the issues in question, particularly the claim for double rent where only one of several tenants gave notice. 

Therefore, with consent, the default judgment was set aside, and the defendant was ordered to file a defence within 14 days.

The defence

There were four elements to the defence:

1. That the guarantor deed was invalid because the witness was not “independent”, and a witness couldn’t be a party to the instrument (it had been witnessed by one of the joint tenants).
2. The defendant had not been given a copy of the tenancy agreement before the signing of the deed. In addition, he claimed to have failed to bring his glasses, so he wasn’t aware of what he was signing (he claimed that his daughter had told him he was only there to pay a deposit and had made no mention of being a guarantor)
3. That double the rent was not applicable because the Distress for Rent Act 1737 did not apply in this case (hence the point about a notice from one was raised) and;
4. Claims were made by the defendant about discussions relating to liability and how long possession would take.

The decision

The final hearing was on 13 December 2012 in the county court at Leeds combined court and was set for half a day. 

On the points in order of the defences pleaded, the court decided the following: 

1. Deed invalid 

There is no requirement for the witness to be “independent”. 

The witness must not be a party to the instrument itself. One of the tenants witnessed the guarantor deed, but they were a party to the tenancy agreement and NOT the guarantor agreement made as a deed. 

Therefore, the guarantor agreement was valid. 

2. Tenancy agreement not previously provided 

“Let the buyer beware”… The guarantor should have walked away if unsure. We always allow unlimited time at the signing appointments so tenants and guarantors can take as long as necessary to read the documents at their own pace. 

There is no requirement to provide a copy before the meeting, although this is commonly done. They could have asked before the meeting. 

3. Double rent

The court held that the double rent provisions also apply where one of the joint tenants gives notice even without the concurrence of the other tenants.

 Therefore, as long as the notice is valid and the landlord treats any remaining occupiers as trespassers (so only accept mesne profits and seek possession promptly), then double the rent is payable upon the expiry of the notice to quit if and for so long as one or more persons remain in occupation [Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [1999] 3 W.L.R. 57 followed]. 

4. Discussions that were had with the claimant about liability 

The defendant guarantor claimed that at the signing of the agreement back in July 2011, he had asked me, the claimant, how long it would take to evict his daughter should they not pay and how much his liability would be (strange because in the same breath he was saying that he had forgotten his glasses and didn’t know what he was signing!) 

This was untrue because, as I pointed out, in the 20 or so years I’ve been letting property, no father acting as a guarantor has asked in the same room as his daughter questions about how quickly we would evict his daughter. 

This was our conversation when we requested the money in October / November. 

His case was that he would pay when we had evicted, which we didn’t accept. At that time, we briefly explained a rough procedure, i.e. two months’ notice, then a few weeks for a court order etc. In addition, and any event, the length of time possession took was a direct result of his daughter’s actions. 

The court didn’t place too much weight on the alleged hearsay evidence from the defendant, and the court preferred our version of events on the balance of probabilities. 

It wasn’t an important issue because the guarantor agreement was made as a deed and had already been found valid.

Order

The set aside of the judgement was removed, so the default judgment had effect again. 

The guarantor (and former tenant) was ordered to pay £4,101.75, including court fees and interest, within 28 days.

Final comment

This case shows that if the paperwork is set up correctly at the beginning, it can be worth pursuing the debt, and you should typically be successful in obtaining a judgment. 

At the time of the tenancy, he was a homeowner so a charge could be placed against the home.

Ultimately, several things can be done if he doesn’t pay, including the bailiff seizing goods, a charge on the property and an attachment of earnings, but it won’t be easy. Who’d be a landlord?!