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Liability of a guarantor in the rental contract

Posted by Michel B. on 27/10/2020

When renting a home, a series of requirements must be met;

In the first place, demonstrate certain solvency to face the periodic payment of the rent to the owner and the expenses of fees to the agency. Regarding solvency, their job stability and income must be analyzed, for which it is common to request the employment contract and the latest payrolls.

However, the Urban Leasing Law, in its article 36.5, allows other guarantees to be included in order to face the risks of non-payment: “The parties may agree on any type of guarantee of compliance by the lessee with their lease obligations. additional to the cash deposit ”.

Include a guarantor in the rental contract as an additional guarantee to the deposit. In theory, a verbal agreement on this matter is perfectly valid.

The guarantor has the obligation to cover the breach of the tenant’s obligations. In any case, it can never be higher.

Another important factor regarding the guarantor’s obligations resides in whether he is liable in a subsidiary or joint manner. If the guarantor does so in a subsidiary manner, he must respond for the obligations that the lessee does not pay and for which he cannot respond with his assets. On the other hand, when a joint and several guarantee is chosen, the creditor can act against the guaranteed debtor and the guarantor without distinction.

The only situation in which there are no doubts is when in the contract there is an express provision according to which the guarantor will respond for the entire duration of the contract, including extensions, and until possession of the property is delivered.

However, if there is no express mention, it is when different interpretations arise.

In any case, a good way to try to guide us is if the extension occurs for legal reasons, that is, it is based on article 9 of the LAU, or if, instead, it is a voluntary extension, to which it does reference article 10 of the LAU.

This means that if the contract has a duration of one year and the tenant decides to continue until the five years allowed by the norm, the guarantor will be bound during that time.

Different are those cases in which the extensions are voluntary; that is, once the five years have passed, if the contract does not say otherwise, the guarantor will be released from his obligations.

Without a doubt, the best decision is that the conditions to which the parties are bound are written in the contract and thus avoid any type of inconvenience.

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