If I am a guarantor on a tenancy and the tenant does not pay, what can be claimed from me?

Question

José Manuel Alburquerque · Accepted Answer

Whatever the document you signed says, because a personal guarantee cannot extend beyond what was agreed. If you guaranteed all the obligations under the agreement without setting any limits, you may have to answer for everything the tenant owes and for the legal costs of the proceedings incurred after the claim is made against you. Most agreements say that the guarantor is liable “solidariamente” (jointly and severally) and waives the benefit of discussion (“beneficio de excusión”), which is the right to insist that the landlord first recover the debt from the tenant's assets. In that case, the landlord can claim directly from you from the first missed payment. You can later claim back from the tenant whatever you pay. What your guarantee covers Read carefully what you signed, especially these points: The maximum amount, if there is one. What it covers, whether only the rent or also damage to the home, utilities, service charges (owners' association fees) or legal costs. Anything it does not mention cannot be claimed from you. Until when. If it says that it lasts until the keys are handed back or that it covers extensions, you are also liable while the agreement is extended. If it says nothing, it is debatable whether you are also liable during the extensions granted by law. If the agreement and its extensions come to an end and the tenant stays on in the flat with the landlord's consent, without signing anything new, what is known as tacit renewal (“tácita reconducción”) takes place. In that case the guarantee is extinguished, unless the document signed also extends it to that situation. In most agreements, the law limits the additional guarantee that can be required from the tenant to two months' rent, but it is not clear that this limit applies to what a guarantor is liable for. Do not count on it. How a claim can be made against you In writing, usually by “burofax” (a certified letter with proof of content). Before bringing a claim, the landlord must attempt to negotiate. If you are offered an agreement, reply to it. This is the time to agree, for example, a payment plan. If there is no agreement and you are jointly and severally liable, the landlord can in principle sue you together with the tenant, in the same proceedings in which eviction is sought, to claim the rent from you, provided that a formal demand for payment has been made to you beforehand. If the landlord gives the tenant more time to pay without your consent, you may be released. Claims against you for rent become time-barred within the same period as claims against the tenant. In Catalonia this is three years from the date each monthly payment falls due. If your guarantee is not joint and several and you did not waive that benefit, you can ask for the landlord to recover the debt from the tenant's assets first. You must do so as soon as a claim is made against you and identify assets of the tenant in Spain that are sufficient to pay. If you pay You can claim from the tenant everything you have paid on his or her behalf. Notify the tenant in writing when a claim is made against you and when you pay. If you have to sue the tenant, you too will first have to attempt to negotiate. Before paying, ask for a breakdown of the debt and check that it does not include anything your guarantee does not cover.