The surety is the person who agrees with the owner of the rented accommodation to pay the tenant’s rental debts if he is not up to date with his payments. To get involved, she signs a deed as the landlord and the tenant sign the lease. The formalism of the bond deed has been recast by the last two law affecting the lease. Since the entry into force of the Elan on November 25, 2018, the guarantor no longer needs to write various mentions by hand, as was the case before. It suffices that they appear on the document, without having to be copied, which considerably facilitates the writing of this document. In addition, the scope of the guarantor’s commitment has been limited in the case of roommates since the entry into force of the Alur law in March 2014. Another point has also evolved. There is now a legal list of documents that can be requested from the guarantor to ensure its solvency.
Documents to ask the surety
To ensure that the person proposing to be surety is solvent, the landlord asks for documents that justify his identity, his professional activity and his income. Only the supporting documents appearing on a list fixed by a decree of the Alur law may be requested from the guarantor depending on whether it is a natural or legal person. To find the details of this list, you can consult our article: Owners landlords: what can you require from the tenant?
You can not request any other proof than those indicated on this list.
Guarantee deed: what formalities?
The form of the suretyship
The surety bond is a document to be completed independently of the rental agreement. By signing it, the guarantor agrees to the lessor to replace the defaulting tenant. For its validity, the deposit must include certain mentions. It is therefore essential to use a pre-established standard model:
Order the model form of the act of surety of PAP.fr
Our standard form of bond is up to date Alur and Elan laws. It is accompanied by a pre-filled specimen.
The contents of the suretyship
To be valid, the bond must include several mentions:
- the name of the beneficiary of the bond,
- the address of the dwelling concerned,
- the name of the lessor,
- the amount of the rent,
- the conditions for revising the rent,
- a statement specifying in an explicit and unequivocal way the knowledge that the surety has of the extent of its obligations (its duration of engagement and / or the ceiling of the sums for which it engages),
- the reproduction of part of article 22-1 of the law of July 6, 1989: this is necessary, since the law Alur, as well in empty renting as in furnished renting. This article recalls that when the commitment of the surety is not limited in time, the surety may terminate it. This mention is mandatory for the validity of the deposit. Until the entry into force of the Elan law, this mention had to be copied by hand by the person who was surety. The same was true of the statement that she was fully aware of the scope of her engagement. From now on, this long and tedious writing job is no longer necessary. The Elan law on the evolution of housing, development and digital technology has removed it in order to allow the gradual transition to a dematerialized contract drafting. It is sufficient, for the validity of the surety deed, that these particulars appear in the bond deed, which is the case of the standard models that we propose.
This writing helped the surety to become fully aware of the scope of his commitment. To avoid that the surety engages too heavily by simply signing the bond, we advise to indicate the maximum amount of his commitment. This is what we have provided for in the standard form of the bond document we offer on PAP.fr. For an effective deposit, we advise you to provide an amount representing at least two years of rent and charges for an empty or furnished rental, because the deposit is committed for both rent and charges but also for damage and rental repairs (as provided in the surety bond).
The Alur law added a new obligatory mention in the case of colocation, that is to say in the case where several tenants sign a single lease to share the same dwelling:
- either the surety agrees for one of the roommates only: it then indicates the roommate’s name as being the one whose leave will terminate his engagement,
- or the surety agrees for several roommates: it should, in this case, indicate the roommates whose leave will terminate his commitment, six months after the departure of the tenant.
1 / A couple of cohabitors X and Y take a rental: they are roommates, since they are neither married nor pacsés. X’s mother stands surety for the two roommates. Logically she will indicate the name of her child (X) as the one whose leave will terminate her appointment. From X, his appointment will end six months later, even if Y stays in the house longer.
2 / Two brothers X and Y take a roommate together. Their father stands surety for his two sons, and indicates their two names in the deed of surety. He must, however, choose that of his sons whose leave will terminate his engagement. In order for the landlord to avoid being prematurely unguarded, the surest way is to ask another guarantor, the mother for example, to also be a surety for his two sons, and to indicate the name of his son. other son (Y) as being the one whose departure will free it vis-à-vis the lessor.
This new constraint is more reassuring for the surety who is not likely to end up guarantor of a former roommate of his child while the latter has left the roommate for a long time. The surety bond ends six months after the end of the tenant’s notice, the name of which is indicated in the paragraph provided for in the surety bond.
On the other hand, it is more insecure for the lessor who can end up without a guarantor if the roommate whose name is mentioned in this clause gives his leave while the other roommates remain in the dwelling and have no guarantor.
For this reason it is always preferable that each of the roommates individually presents one or more guarantors to the landlord so that he has a sufficient guarantee of payment of the rent.
The duration of the commitment of the surety
The legal principle, which has not been modified with the Alur law, is that, in the absence of an indication of a duration or when the duration is indefinite, the guarantor has the possibility of unilaterally terminating the bond.
In colocation, the commitment of the surety ends:
- immediately upon the termination of the notice of the roommate named in the deed of guarantee as being the one whose leave releases him, provided he is replaced at his departure by a new roommate;
- six months after the end of the notice of the same tenant if he has not been replaced since his departure by a new roommate.
Donors must be vigilant in drafting sureties, especially in co-location so that they are fully completed and can not be challenged by the guarantors.
Deposit and insurance unpaid rent
You can not ask for a joint and several guarantee from your tenant if you want to take out insurance against the risk of unpaid rent. You must choose between the two, except if your tenants are students or apprentices: in these two cases, cumulation is possible, because they are tenants who usually have insufficient personal income to be able to assume their rent charges.
The Alur law makes it possible to obtain the nullity of the deed of guarantee if you have taken out insurance against unpaid rent when you had asked for a guarantor.
In addition, if the lessor is a legal entity other than a civil society formed exclusively between parents and allies up to the fourth degree included, the guarantee may be requested only:
– if it is brought by an organization whose list is fixed by decree;
– or if the accommodation is rented to a student not benefiting from a scholarship of higher education.