Guarantor Agreements: When They're Enforceable and When They're Not

Guarantor Agreements: When They're Enforceable and When They're Not

A tenancy guarantee is enforceable in England only if it is in writing and signed by the guarantor, and supported by consideration unless made as a deed. It can be discharged if the tenancy is varied without the guarantor's consent, and section 19 of the Renters' Rights Act 2025 ends liability on the tenant's death.

This article is for general information purposes only and does not constitute legal advice. Landlords should seek independent legal advice for their specific circumstances. It describes the position in England.

Why guarantees matter more than they used to

The Renters' Rights Act 2025 removed the cushion landlords previously relied on for a borderline applicant. Rent in advance is now capped at one month once the tenancy agreement is signed, and rent paid before the tenancy is entered into is a prohibited payment under the Tenant Fees Act 2019 as amended.

A guarantee is therefore the main remaining tool for supporting an applicant whose ability to pay is unproven rather than disproven: students, first time renters, people with variable self-employed income, and applicants arriving from abroad with no UK financial history. That makes the enforceability question considerably more important than it was.

Formation: the three requirements

Writing and signature. Section 4 of the Statute of Frauds 1677 requires any promise to answer for the debt or default of another person to be in writing and signed by the guarantor or their authorised agent. A verbal promise to cover the rent is not enforceable, however clearly it was given and however many people heard it.

Consideration, unless it is a deed. A guarantee is a contract, and a contract needs consideration unless it is executed as a deed. Where the guarantee is signed before or at the same time as the tenancy is granted, the grant of the tenancy is usually the consideration. Where it is signed afterwards, that consideration has already been given, and the guarantee may fail for want of consideration unless it is executed as a deed.

Timing. This is the practical consequence of the point above, and it catches landlords who chase paperwork after the tenant has moved in. The safe sequence is that the guarantor signs before the tenancy is granted. Where a guarantee has to be taken later, executing it as a deed, with the guarantor's signature witnessed, avoids the consideration problem.

A guarantee should also be a separate, clearly labelled document rather than a clause the guarantor signs at the foot of the tenancy agreement. The guarantor needs to see the obligations they are backstopping, and a guarantor who did not understand their exposure is a guarantor who contests it.

The variation rule

This is the largest single source of unenforceable guarantees, and it has nothing to do with how the document was signed.

The rule in Holme v Brunskill (1878) 3 QBD 495 provides that where the contract a guarantee supports is varied without the guarantor's consent, the guarantor is discharged, unless the variation is obviously insubstantial or one which could not possibly prejudice them. The Court of Appeal decision has been applied consistently since, and commentary describes it as a trap for the careless creditor.

The reason it bites in tenancies is that things change. Rent goes up. Terms are renegotiated. A tenant is added or leaves. Each of those may be a variation of the guaranteed obligations, and each may discharge a guarantor who was never asked.

Anti-discharge clauses work, but not automatically. Most professionally drawn guarantees include a provision that the guarantor's liability is not affected by any variation, concession or agreement between landlord and tenant. Such clauses are generally effective, but they are construed strictly against the party who drafted them under the contra proferentem principle, and a court may still find grounds to apply the discharge rule on particular facts. A guarantee with no such clause is exposed.

The Section 13 question

There is a genuinely unresolved issue here, and landlords should treat it as unresolved rather than settled either way.

Since 1 May 2026 the only route to increase rent on an assured tenancy is the statutory Section 13 procedure using Form 4A. A tenant who does not challenge it sees the rent rise by operation of law, without agreeing to anything. Our article on whether a tenant can refuse a Form 4A rent increase covers the mechanics.

The argument that the guarantee survives is that a statutory increase is not a contractual variation at all. Holme v Brunskill concerns changes the principal parties agree between themselves, and a Section 13 increase is imposed by a statutory mechanism rather than negotiated. On that reading there is nothing for the variation rule to bite on.

The argument the other way is that the guarantor's exposure has increased without their consent, which is the mischief the rule addresses, and that the form of the increase should not determine the outcome.

This does not appear to have been tested in the courts under the new system. Anyone who tells a landlord the answer is obvious in either direction is overstating the position. The practical response is to ensure the guarantee expressly covers rent as increased from time to time, including by statutory procedure, and to consider notifying the guarantor when a Section 13 notice is served, since consent removes the argument entirely.

The periodic tenancy problem

Fixed terms were abolished on 1 May 2026, so every assured tenancy is periodic and continues until it is brought to an end. A guarantee drafted for a twelve month fixed term with an expectation of renewal now has no term to attach to.

Two drafting consequences follow. The guarantee needs to state clearly that it continues for the duration of the tenancy however long that lasts, rather than for a fixed period. And a guarantor asked to sign an open ended commitment will reasonably ask what their exit is, which is a question landlords should have an answer to before it is asked.

The old workaround has also gone. Landlords previously took a fresh guarantee at each renewal, which reset both the consideration and the variation problem. With no renewals, that opportunity does not arise, and most tenants who understand their position will decline to provide a new guarantee mid tenancy.

Section 19: liability ends on the tenant's death

The Renters' Rights Act 2025 inserted section 16N into the Housing Act 1988, and it operates automatically.

Where a guarantor became a party to the guarantee on or after 1 May 2026, the guarantee is of no effect to the extent that it guarantees rent for the period beginning with the tenant's death. Guarantees entered into before that date are unaffected.

The detail is worth knowing because the drafting is careful.

"Family member" is defined widely in section 16P: spouse, civil partner or cohabitee, and the child, grandchild, parent, grandparent, sibling, niece or nephew, aunt or uncle, or cousin of the guarantor or of their partner, plus the spouses of those people. Siblings of the half blood and step siblings count. Once a person is a family member they are treated as remaining one, even if the relationship that created the connection ends.

Two further points. The section applies whether or not the guarantee is in writing and whether or not it sits inside the lease, so a landlord cannot draft around it. And where death occurs mid period, the rent for that period is apportioned by a statutory formula, so the guarantor remains liable for the days before the death and not for the days after.

Requiring a guarantor lawfully

Two constraints apply, and one widely reported restriction does not exist.

You cannot require one selectively. Requiring a guarantor only from benefit claimants, or only from applicants with children, is a criterion that makes those groups less likely to obtain a tenancy and can amount to indirect discrimination under sections 33 and 34 of the Renters' Rights Act 2025, carrying a penalty of up to £7,000 decided on the balance of probabilities. The requirement must apply on the same terms to everyone, or be triggered by something applicant neutral such as failing a stated affordability threshold. Our article on tenant referencing covers how to structure that.

You cannot charge for it. A fee for arranging or processing a guarantee is not a permitted payment under the Tenant Fees Act 2019.

There is no statutory cap on guarantor liability. An amendment proposing to limit a guarantor's exposure to six months' rent, and to restrict when a guarantor could be required at all, was tabled during the Bill's passage but does not appear in the Act as enacted. Landlords should nonetheless be aware that this was actively debated, and the position may be revisited.

Joint tenancies: what is actually being guaranteed

This is the point most guarantors misunderstand, and most landlords do not explain.

Where a tenancy is joint and several, all the tenants together are "the tenant", and any sum due under the tenancy is payable by all of them or any of them. A guarantee of the tenant's obligations therefore guarantees the whole rent, not a share of it. A parent guaranteeing their child in a four person house share is, on a standard guarantee, backing the full rent for the entire property if the other three stop paying.

Guarantors rarely intend this and frequently dispute it later. Two responses are available. The guarantee can be drafted to cover only the obligations attributable to one named tenant, which is fairer and considerably easier to get signed, though it leaves the landlord exposed if another tenant defaults and their guarantor is unavailable. Or the full liability can be kept and explained clearly in the document, which is enforceable but should not come as a surprise at the point of claim.

Section 16N interacts with this directly. Where a guarantor is a family member of only one joint tenant and that tenant dies, the guarantee ends for rent from that death even though the surviving tenants remain liable. A landlord relying on one guarantor to cover a whole house share should understand that the guarantee can fall away on an event that has nothing to do with the other three.

Enforcing a guarantee

A guarantee creates a contingent liability, and the debt only crystallises when the landlord makes a formal demand for payment.

Three practical limits apply. The guarantor's liability cannot exceed the tenant's, so anything that reduces the tenant's debt, such as a successful disrepair counterclaim, reduces the guarantee correspondingly. The Debt Pre-Action Protocol applies before proceedings are issued against an individual guarantor. And a court can discharge a guarantor who signed under undue influence, which is a live risk where a parent or partner was pressured into signing and is a reason to ensure the guarantor had the tenancy agreement and time to read it.

Pursuing a guarantor is a civil debt claim, separate from any possession proceedings against the tenant. The two can run in parallel, and the outcome of one does not determine the other.

What to keep

The guarantee file is short and each item does real work.

Keep the signed guarantee itself, dated, with any witnessing where it was executed as a deed. Keep a record of when it was signed relative to the grant of the tenancy, since that determines whether consideration is an issue. Keep the version of the tenancy agreement that was in force when the guarantee was given, because the variation question is answered by comparing that document to the current position. And keep any correspondence in which the guarantor consented to a change, since consent is the complete answer to a discharge argument.

Where a Section 13 notice is served, keep a copy of what was sent to the guarantor. It costs nothing and closes off the most likely challenge to enforceability under the new system. A guarantee is only useful at the point a landlord needs to rely on it, which is generally the point at which a tenancy is being brought to an end, as covered in our article on how a tenancy ends now Section 21 is gone.

A guarantee that was valid when signed can stop being enforceable because of something that happened afterwards, and the evidence is usually a set of dates nobody recorded. LLCR keeps tenancy documents and dated records against each property, so the sequence of what was agreed and when remains available.