Legal Question in Real Estate Law in California
Please help. My tenant signed a California Association of Realtors one year residential Lease and she broke the lease early. The Tenant also signed as the Guarantor of the Lease, under the paragraph that says: "In consideration of the execution of the Agreement by and between landlord and tenant, and for valuable consideration, receipt of which is hereby acknowledged, the undersigned "Guarantor" does hereby: (i) guarantee unconditionally to landlord, the landlords agents, successors and assigns, the prompt payment of rent or other sums that become due pursuant to this Agreement including any and all court cost and attorneys fees included in enforcing the agreement; [] and (iii) waive any right to require landlord and or landlord's agents to proceed against the tenant for any default occuring under this agreement before proceeding to enforce this guarantee."
The Tenant owes for 1 mo of rent. She broke the lease 2 mos. early. I ran ads, and found a replacement tenant so I pro-rated her rent, and she still owes a month of rent. The signed guarantee says that I don't have to prove default, so can I proceed on collection and also do an attachment of whatever is available to recover the funds?
She won't disagree that she owes the rent, as the tenant has admitted in writing she broke the lease and that she owes the money. She just has not made any arrangements to pay and has stopped responding to formal requests for payment and it has been over 3 months. A payment demand has already been delivered. I need to collect this loss. How can this guarantee help me to advance forward in the process?
3 Answers from Attorneys
I do not see how a person can be both the renter and a guarantor; those need to be two dilfferent people. Also, the provision you cilte does not say that you do not filrst have to get a judgment. What it means is that you do not have to first get a judgment against the tenant before going after the guarantor, but you still need to get a judgment. I personally think the guarantee is worthless. You need to sue in Small Claims Court, get a judgment, and then try to enforce it.
Mr. Shers took the words right out of my typing fingers. Yes, you would have to obtain a judgment before you can engage in collection activities. Small Claims is relatively painless. All you would have to do is file the plaintiff's claim, have it served on the former tenant (assuming you know where she is now), then go to court on the specified date, bring your accounting and the e-mails from the tenant admitting that she owes you the money. Once you get the judgment, then you can begin your collection efforts. Good luck!
I agree......being both an obligor and a guarantor adds little or nothing, especially when the person in her capacity as obligor admits the indebtedness.
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