Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
My question involves landlord-tenant law in the State of: Oklahoma/Texas
I live in TX and signed as a guarantor for my cousin in college who lives in Oklahoma. When I signed last year I was not aware that it was valid for 5 years (my error and accept that) I received a call from their billing office on Monday July 18th advising the rent had not been paid and the eviction process would start this week and my credit could be affected. I was advised by another family member that my cousin had made arrangements to pay the rent at a later date, I called the billing dept 4 times and was not able to speak with anyone. I called the leasing office and was advised that an arrangement was made for payment to be received by the end of July, during the call I also found out that the leasing office had allowed my cousin to renew the lease even though the rent had not been paid. I asked additional questions and was told the property manager would call me back, he did not. I called again and was told he would call me back, he did not. So I have not been able to get my questions answered. I did leave a message for the billing office to call me back and that I was interested in finding out my options in order to continue the eviction process but I did not receive a call back.
**Yes the first yr of the lease is up**
My questions are:
Can I as the guarantor request to have the eviction process started and pay the total cost due?
Since the arrangements were made without my knowledge and/or input, and the leasing office made the decision to continue to lease to an individual who does not pay the rent on time, does this violate my rights as the guarantor and can the contract be voided?
Thanks for any assistance you can provide
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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mbrad1022
When I signed last year I was not aware that it was valid for 5 years (my error and accept that)....
If you are stating that you signed to guarantee the lease for its initial term, and for any renewed terms up to a maximum of five years, then the fact that the lease is being renewed does not affect your status as guarantor. If you guaranteed the lease for its term up to a maximum of five years, with no provision in the lease for renewal or extension, then you may be off the hook. That's not something we can address without the opportunity to review the contract you signed.
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Quoting mbrad1022
...during the call I also found out that the leasing office had allowed my cousin to renew the lease even though the rent had not been paid.
The renewal may have occurred before the late rent payment, or after the landlord was reasonably assured that the month's rent at issue was going to be paid.
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Quoting mbrad1022
I did leave a message for the billing office to call me back and that I was interested in finding out my options in order to continue the eviction process but I did not receive a call back.
You have no power to compel the landlord to evict the tenant, although if the rent is not paid they can reasonably be expected to proceed with an eviction.
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llworking
I am not sure that what they are doing is actually legal.
What action by the landlord concerns you as being potentially unlawful?
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
Update: I spoke with the billing dept and was advised that the new lease renewal/unit transfer was signed on July 5th even though the rent was NOT paid and at that point considered late. I was told that the leasing office gave the tenant until the end of the month to pay the rent or the eviction process would start. The billing dept advised me that since a new lease was signed I could possibly be liable for that, now that does not sound like good business practices or legal to me since the office management violated the terms of the original lease on their own accord by not starting the eviction process at the time the lease was considered delinquent and accepting a renewal/transfer lease for another unit without having a payment on the current lease.
I did advise the billing office that if the tenant was evicted that I would pay the cost in order to sever ties with them and the tenant.
I have a feeling the property manager is not returning my calls and refusing to speak to me when I do call because of the decision made above.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
Do you have a copy of the guarantee that you signed that's valid for 5 years?
Was is a separate guarantee from the first year's lease or was it a guarantee within the first year's lease?
Explain thoroughly how that 5 year thing happened on a one year lease.
If you put yourself on the hook for your cousin's performance for 5 years regardless of the length of each lease then I don't think that the management is doing anything wrong or illegal by renewing the lease and letting your cousin slide as long as they have you on the hook. I also don't believe that the management has any obligation at all to evict for non-payment knowing that they can come after your deep pockets for the money.
As long as they allow your cousin to live there, I think you are pretty well stuck.
I do agree, however, that a visit to an attorney would be a good idea.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
Thanks for that information, you may be right in regards to being stuck. I will review the lease agreement though that the tenant signed to verify how delinquent tenants are be handled and I will also contact an attorney.
To answer your question I do have a copy of the document and it states:
"This guaranty shall be a continuing guarantee and shall remain in full force and effect if the tenant renews the lease beyond the time period of the original lease agreement as long as the lease is renewed on or before August 1st, 2020. If the renewal lease includes increased monthly rental or other financial terms, the guarantor's liability under its guaranty shall likewise increase subject to any limitations under the prevailing law."
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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mbrad1022
Thanks for that information, you may be right in regards to being stuck. I will review the lease agreement though that the tenant signed to verify how delinquent tenants are be handled and I will also contact an attorney.
To answer your question I do have a copy of the document and it states:
"This guaranty shall be a continuing guarantee and shall remain in full force and effect if the tenant renews the lease beyond the time period of the original lease agreement as long as the lease is renewed on or before August 1st, 2020. If the renewal lease includes increased monthly rental or other financial terms, the guarantor's liability under its guaranty shall likewise increase subject to any limitations under the prevailing law."
You might want to get a consult with a real estate attorney to see if there is any way that you can rescind that guarantee. That is pretty ridiculous and its very unfortunate that you ever signed it.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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mbrad1022
Thanks for that information, you may be right in regards to being stuck. I will review the lease agreement though that the tenant signed to verify how delinquent tenants are be handled and I will also contact an attorney.
What you are likely to find is that the tenant has obligations and the landlord has options. Any recourse that the landlord has for delinquent rent is optional, not mandatory. A landlord might have the right to evict for non-payment but not the obligation to do so.
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mbrad1022
To answer your question I do have a copy of the document and it states:
"This guaranty shall be a continuing guarantee and shall remain in full force and effect if the tenant renews the lease beyond the time period of the original lease agreement as long as the lease is renewed on or before August 1st, 2020. If the renewal lease includes increased monthly rental or other financial terms, the guarantor's liability under its guaranty shall likewise increase subject to any limitations under the prevailing law."
Ouch.
I can't see any reason why that guaranty wouldn't be enforceable.
Let us know what the lawyer tells you.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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adjusterjack
What you are likely to find is that the tenant has obligations and the landlord has options. Any recourse that the landlord has for delinquent rent is optional, not mandatory. A landlord might have the right to evict for non-payment but not the obligation to do so.
Ouch.
I can't see any reason why that guaranty wouldn't be enforceable.
Let us know what the lawyer tells you.
I can see some potential reasons. However this is one of those cases where I do not believe that any of us should be doing anything other than recommending that the OP consult an attorney.
I think that its irresponsible of you to say the bolded above, and it would be irresponsible of me to make a claim that the guarantee is not enforceable. Its not irresponsible for you to say that you think it might be enforceable and it would not be irresponsible of me to say that it think it might not be, but either of us giving a direct opinion is NOT responsible as far as I am concerned.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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llworking
I think that its irresponsible of you to say the bolded above, and it would be irresponsible of me to make a claim that the guarantee is not enforceable. Its not irresponsible for you to say that you think it might be enforceable and it would not be irresponsible of me to say that it think it might not be, but either of us giving a direct opinion is NOT responsible as far as I am concerned.
“I know you think you understood what you thought I wrote but I'm not sure you realize that what you read is not what I meant”
Paraphrasing Alan Greenspan.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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llworking
I can see some potential reasons.
What reasons have you mind? Simply because you think it “ridiculous” does not make it unenforceable, after all. A guarantee for five years is not unheard of; I have seen some guarantees like that in my state, though they have tended to be more for commercial leases than residential leases. While not common for residential leases, the fact that it is not common does not itself make it illegal or unenforceable. The guarantor presumably read the guarantee he/she was signing and if he/she did not want to be on the hook for five years he/she should have declined to act as the guarantor or asked for a modification for a shorter time.
I certainly agree the OP ought to have a local attorney read the entire guarantee and see if there is any way out of it for him, but I wouldn’t be overly optimistic on that given what has been said so far about the guarantee.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
I appreciate all of the responses as I knowledge it was my own error in not fully reading that document. Realizing now it was a separate form and I had signed electronically and I accept responsibility for that. I am normally much better at that and will make sure one I never sign for anyone else and two that no matter what I read every page especially when I'm signing online documents. However I have another idea that came to me this morning. Instead of going after the property management company, I can go after the tenant because technically they are the one violating the lease terms continuously and our agreement for her to pay the rent on time. I'm not going to try for any money but to force her hand into finding a new guarantee within a certain period of time.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
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mbrad1022
I appreciate all of the responses as I knowledge it was my own error in not fully reading that document. Realizing now it was a separate form and I had signed electronically and I accept responsibility for that. I am normally much better at that and will make sure one I never sign for anyone else and two that no matter what I read every page especially when I'm signing online documents. However I have another idea that came to me this morning. Instead of going after the property management company, I can go after the tenant because technically they are the one violating the lease terms continuously and our agreement for her to pay the rent on time. I'm not going to try for any money but to force her hand into finding a new guarantee within a certain period of time.
I still think that you need to run the guarantee document by a local attorney.
Re: Can a Lease Guarantor Get a Landlord to Proceed With an Eviction
I'm definitely going to contact an attorney because Oklahoma law requires the property management company to attempt to cut their losses, by either eviction, releasing from agreement and making every effort to re-lease the unit. So I'm feeling a little better about my options because the company is not taking those actions by allowing the tenant to sign a new lease while delinquent on the current lease.
Oklahoma Statutes Citationized
Title 41. Landlord and Tenant http://www.expertlaw.com/forums/#null
Residential Landlord and Tenant Act
Section 105 - Mitigation of Damages - Rights, Obligations and Remedies - Enforcement
A. An aggrieved party under the provisions of this act has a duty to mitigate damages.
B. Any right, obligation or remedy declared by this act is enforceable in any court of appropriate jurisdiction including small claims court and may be prosecuted as part of an action for forcible entry or detainer unless the provision declaring it specifies a different and limited effect. In any action for breach of a rental agreement or to enforce any right or obligation provided for in this act, the prevailing party shall be entitled to reasonable attorneys' fees.
Oklahoma Statutes Citationized
Title 41. Landlord and Tenant
Residential Landlord and Tenant Act
Section 129 - Tenant's Breach of Rental Agreement - Wrongful Abandonment
A. Unless otherwise agreed, use by the tenant of the dwelling unit for any purpose other than as his place of abode shall constitute a breach of the rental agreement and shall be grounds for terminating the rental agreement.
B. If the tenant wrongfully quits and abandons the dwelling unit during the term of the tenancy, the landlord shall make reasonable efforts to make the dwelling unit available for rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, said rental agreement terminates as of the commencement date of the new tenancy. If the landlord fails to use reasonable efforts to make the dwelling unit available for rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If, after making reasonable efforts to make the dwelling unit available for rental after the abandonment, the landlord fails to rerent the premises for a fair rental during the term, the tenant shall be liable for the entire rent or the difference in rental, whichever may be appropriate, for the remainder of the term. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.