Ask us at Frettens
Here's some frequently asked questions on dispute resolution, if you need to ask us anything more please get in touch using the form on the right.
Q. Can I simply ask my tenant to leave after giving them a months’ notice and if they don’t go can I kick them out or change the locks?
A. No, there are strict rules regarding the eviction of tenants and you must follow those rules if you want to get possession of your property. There are a number of matters that you must have complied with before the start of the tenancy and during the tenancy before you can even serve a valid notice of eviction. If you have complied with all of the requirements then you can service a valid notice. Depending on which notice you give you can either provide 2 months’ notice to your tenant or 2 weeks’ notice. Even then you can simply kick them out if they don’t leave. You must issue court proceedings and get a court order.
Q. My builder and I have fallen out, can I simply throw them off site, withhold payment and hire someone else?
A. Whilst this is an option it is not recommended. You should ideally arrange a site meeting to discuss the issues you have with the works and give them a ‘reasonable’ opportunity to rectify those defects before withholding payment and hiring a replacement. Make sure you have written correspondence about what is agreed and if you are still not satisfied or the builder chooses not to proceed you will have a far stronger claim to withhold money, potentially make a claim for money back or claim for additional monies you have incurred in paying an alternative contractor to complete the works to your satisfaction.
Q. My partner and I have split up and he has kicked me out of his house which I spent a lot of money renovating, am I entitled to a larger share of the sale proceeds for the works I have carried out?
A. Firstly, this will depend on who the legal owners of the property are and secondly, whether there was an intention or understanding, jointly shared by you and your ex-partner in relation to the shares in the property being changed to reflect works being carried out by you. The starting point will be to consider the title deeds, any declaration of trust and/or whether there is any express written agreement in place between you and your ex-partner regarding the works carried out or the shares in the property.
Q. What is a personal guarantee?
A personal guarantee is a promise by an individual (a ‘guarantor’) that if a borrower or debtor fails to meet a payment obligation under an agreement, the individual guarantor will fulfil that obligation.
A personal Guarantee provides security for the creditor as it guarantees that the obligations under the contract will be met, even if by the individual guarantor.
Q. When is a personal guarantee used?
Personal Guarantees might arise on agreements such at tenancy agreements or loans/hire purchase agreements.
Creditors will often ask for personal guarantees where a debtor has a low income or has a bad credit history.
Q. Can a personal guarantee be enforced?
If the debtor fails to meet their obligations, the creditor will then look to the Guarantor instead. This means that the guarantor’s personal assets are at risk as the liability to meet the obligations set out in the guarantee is personal to the individual guarantor.
The creditor can seek to enforce the terms of the guarantee by issuing court proceedings against the Guarantor. Any court Judgment can then be enforced against the Guarantor’s assets including their property.
Q. Can a personal guarantee be transferred or cancelled?
If a Guarantor wants to be released from a Guarantee, they must obtain the creditor’s permission. The very reason for a creditor seeking a Guarantee in the first place is usually because they have concerns over the debtor’s ability to meet their obligations.
Creditors will not usually agree to the removal of a guarantor unless a replacement guarantor agrees to take their place. Even then, the creditor may not agree if the proposed guarantor does not have the ability to meet any payments required under the guarantee.
Q. How long does a personal guarantee last for?
A guarantee lasts as long as the debtor’s obligations under the Agreement. For example, a Guarantee signed by a director of a company does not automatically come to an end when that person ceases to be a director of a company.
Q. Does a personal guarantee come to an end on the death of a guarantor?
The death of the individual guarantor does not automatically discharge the guarantee obligations under the guarantee. The payment of any sums due under the guarantee as a result of the default of a Debtor may become the debt of the Guarantor’s estate.
Q. Should I sign a personal guarantee?
Any personal guarantee should advise you to seek independent legal advice. It is your responsibility as the guarantor to weigh up the financial risks involved, as you will ultimately be held responsible for the debt or payments if the debtor fails to keep to the terms of the agreement.