A decision by the High Court on the liability of a guarantor has just been published and is already causing concern and consternation in the market.
The case involved a lease granted to Tenant A whose obligations were guaranteed. When Tenant A assigned its lease to Tenant B the landlord granted consent and relied on the lease clause requiring that both Tenant A and its guarantor enter into an authorised guarantee agreement. The Court decided that when Tenant B defaulted and the landlord tried to enforce against the guarantor that it could not do so. The guarantee was held to be void because of the anti-avoidance provisions of the Landlord and Tenant (Covenants) Act 1995. Leave to appeal has been granted and we expect the appeal to be lodged.
This case has serious implications for landlords granting new leases with guarantors, to investors where covenant strength and value depend on such a guarantee and to potential buyers of those investments. Here are some initial thoughts -
Granting a new lease involving a guarantor - consider now making the guarantor a joint tenant rather than a guarantor. This will avoid the dilution of covenant strength that all too easily happens on assignment. If your tenant is taking separate leases of a number of floors think again about whether this should be a single lease deal. We have a number of options for changing the lease assignments clause and suitability depends on the market place so needs individual advice.
Assignment of a lease involving a guarantor - review any applications for consent being processed to require other security for the assignee to compensate for not being able to call on the original guarantor to guarantee the liabilities of the assignee. These cases often turn on the wording of the lease and we are working with our clients to adopt appropriate solutions to manage individual risk in a situation where tenants have number of statutory rights.
Buying an investment - check that the potential impact of this case is factored into the valuation where an AGA has been given by a guarantor.
Investors suing AGA guarantors - expect some robust defences from guarantors like the one in this case. Consider all your enforcement options.