Legal Question in Real Estate Law in California
My company is acting as guarantor for a friend's commercial lease, however my business is no longer profitable and I must close it. How do I proceed to resign as a guarantor?
3 Answers from Attorneys
You probably can't. A well-written guaranty will run for the life of the thing guaranteed, such as a lease. The LawGuru real-estate attorneys recently struggled with the issue of whether a guarantee continued in effect after the term of the lease, when the tenant was holding over. I don't remember what we decided, but there is no doubt that a business that has given a guaranty cannot normally just "resign" during the life of the thing guaranteed.
Giving you further advice would be greatly benefitted by knowing whether your business that gave the guarantee is a sole proprietorship or an entity such as an LLC or corporation.
If you are closing down an entity, you should know and follow the rules for dissolving it, liquidating the assets and making provision for the liabilities. A guaranty is a contingent liability and you would probably be expected to make some provision for it before paying any liquidating dividend or making distributions of business cash or other property to yourself, which could result in potential personal liability. Of course, if there is nothing left to distribute to the owner(s), you are off the hook.
You don't. And, if you signed a 'personal guarantee' in any form, you are on the hook to the extent of all your personal assets unless the borrower pays off the debt in full. Even if you close your business, the principles in the business could still be liable unless the business closing was done absolutely correctly.
you are on the hook for the guarantee if primary borrower does not pay unless they agree to terminate the guarantee