Guarantor to lease?

[mollym.sequoia@]

What is the name of your state? California

I decided to rent to a tenant after her mother (the wife of the owner of a berry fruit company so popular that its product is most likely sitting in your fridge right now) verbally guaranteed me that shed be responsible for the payments. And she followed through on her promise for many years. And I have the proof of the monthly payments coming to me directly from her every time her daughter didnt pay me, which was almost every month.

Fast forward to today. The daughter left owing back rent and damage to the house that far exceeds her deposit. Can I sue the mother for the damages since shes been the guarantor as of yet?

(And i know that anybody can be sued at any time, but what I'm asking is, is it likely shell be held responsible even though she never signed anything saying she was guarantor? What are my chances in court?)

And I already know it was stupid of me to not get a signature, so please don't bother putting that in your response.

 

[adjusterjack]

Can I sue the mother for the damages since shes been the guarantor as of yet?

I think so, but it's complicated.

California Civil Code Section 1624:
(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:
(2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=2.&part=2.&chapter=&article=

Were it not for the exception in Paragraph 2 I would have said no, you would not be successful without a written guarantee.

Section 2794:
A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:
(4) Where the promise is upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person;

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=13.&part=4.&chapter=&article=2.

Keep in mind that I am not a lawyer and I don't know how far my interpretation will go but if I were in your shoes (and I was a landlord for many years) I would sue both the tenant and the mother.

Have you asked the mother to make good on the daughter's obligations?

 

[mollym.sequoia@]

I think so, but it's complicated.

California Civil Code Section 1624:
(a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:
(2) A special promise to answer for the debt, default, or miscarriage of another, except in the cases provided for in Section 2794.

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=2.&part=2.&chapter=&article=

Were it not for the exception in Paragraph 2 I would have said no, you would not be successful without a written guarantee.

Section 2794:
A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:
(4) Where the promise is upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person;

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=13.&part=4.&chapter=&article=2.

Keep in mind that I am not a lawyer and I don't know how far my interpretation will go but if I were in your shoes (and I was a landlord for many years) I would sue both the tenant and the mother.

Have you asked the mother to make good on the daughter's obligations?

Not yet, I wanted to gather information regarding her possible obligations as a guarantor before I did. I can't afford a lawyer, and I know her mother can afford a lawyer since she has her husband's money at her disposal, so I need to get my facts straight before I make any more stupid mistakes or put my foot in my mouth. Thank you for the answer it was a big help.

 

[HRZ]

How is mom's paying daughters bill beneficial to mom?

But I'm of the sue them both view

 

[adjusterjack]

How is mom's paying daughters bill beneficial to mom?

Got daughter out of the house and Mom has house to herself.

Sounds beneficial to me.

 

[HRZ]

Hope the judge buys that....I get it.

Sue them both .

 

[Litigator22]

. . . The biggest problem with this being a contract is that I see no consideration mentioned that the OP would provide the mother. (?)

I must disagree. There is no problem with this narrative from the standpoint of consideration for the mother's promise to answer for her daughter's debts; not if those obligations are clearly defined or reasonably ascertainable.

A contract or promise to answer for the debt of another is a tri-party agreement: principal debtor, creditor and surety. The needed consideration supporting the contract and binding the surety to the promise or undertaking is in the form of the benefits derived by the debtor and the incurring risk taken by the creditor.

A common example is a parent signing/guaranteeing a lease for the benefit of a son or daughter or a car loan. Where in these everyday occurrences do you find the landlords or lenders providing the parent with anything other than peace of mind?

Of course, if it were so that mom made her promise to answer for her daughter's debts after they were incurred, there would be no consideration as the benefits and risks taken would all predate the promise. That is, unless the promise was couched in such terms whereby the OP agreed to refrain from pursuing collection efforts against the daughter to his detriment.
________________________________________

Incidentally, for adjusterjack's needed enlightenment a promise to answer the debt of another DOES NOT fall within the statute of frauds when it is an original promise.

 

[quincy]

I must disagree. There is no problem with this narrative from the standpoint of consideration for the mother's promise to answer for her daughter's debts; not if those obligations are clearly defined or reasonably ascertainable.

A contract or promise to answer for the debt of another is a tri-party agreement: principal debtor, creditor and surety. The needed consideration supporting the contract and binding the surety to the promise or undertaking is in the form of the benefits derived by the debtor and the incurring risk taken by the creditor.

A common example is a parent signing/guaranteeing a lease for the benefit of a son or daughter or a car loan. Where in these everyday occurrences do you find the landlords or lenders providing the parent with anything other than peace of mind?

Of course, if it were so that mom made her promise to answer for her daughter's debts after they were incurred, there would be no consideration as the benefits and risks taken would all predate the promise. That is, unless the promise was couched in such terms whereby the OP agreed to refrain from pursuing collection efforts against the daughter to his detriment.
________________________________________

Incidentally, for adjusterjack's needed enlightenment a promise to answer the debt of another DOES NOT fall within the statute of frauds when it is an original promise.

This thread is from 2018.

See Molly’s new thread here:
https://forum.freeadvice.com/threads/mom-lied.660361/