The Court of Appeal has confirmed that, when a lease is assigned to a third party, the outgoing tenant's guarantor can guarantee the outgoing tenant's liabilities under an authorised guarantee agreement (AGA). In doing so, the guarantor can indirectly guarantee the incoming tenant's obligations.
This guide considers the implications of a recent case for tenants. For the implications for landlords and their lenders, please see our separate Out-Law guide.
What is an authorised guarantee agreement?
Authorised guarantee agreements (AGAs) were created by the Landlord and Tenant (Covenants) Act, and their content is strictly regulated by statute.
Tenants and their guarantors are automatically released from liability to the landlord when a lease is lawfully assigned to a third party. Landlords can, however, require outgoing tenants to enter into AGAs guaranteeing the liabilities of the new tenant under a lease. There are no provisions allowing guarantors to do so as well.
The Landlord and Tenant (Covenants) Act applies to leases granted on or after 1 January 1996, unless the lease was granted under an agreement or court order made before that date. It includes anti-avoidance provisions which invalidate contractual provisions designed to work around it.
Recent case law
There were heated debates about the validity of guarantees of leasehold liabilities following the High Court's decision in the Good Harvest case in 2010 that a guarantee of an assignee given by the outgoing tenant's guarantor was void. This was considered again later that same year in a case between landlord K/S Victoria Street and House of Fraser (Store Management) Ltd.
In January 2006 K/S Victoria Street agreed to the sale and leaseback of a property in Wolverhampton to a company in the House of Fraser group. Under the agreement, the store management company was to take a lease guaranteed by the group holding company. The Agreement for Lease also required it to assign the lease to another group company by April 2006, but no assignment ever took place. In March 2010, the landlord brought proceedings against all three of the House of Fraser companies seeking to enforce the assignment.
House of Fraser relied on the Good Harvest decision to argue that the agreement was unenforceable. The High Court agreed, deciding that the guarantee to be given by the parent company as the outgoing guarantor in respect of the new tenant's liabilities under the lease was invalid. It also doubted whether sub-guarantees - that is, guarantees by outgoing guarantors in respect of outgoing tenants' liabilities under AGAs - were effective. The decision caused difficulties for landlords and tenants, and meant that in many cases groups of companies could no longer make assignments between themselves.
The Court of Appeal clarified the law and upheld the validity of sub-guarantees. The decision confirms that:
- an outgoing tenant's guarantor can guarantee an outgoing tenant's liabilities under an AGA – but not the liabilities of the incoming tenant to which the lease was assigned;
- once released from liability by an assignment, guarantors can provide fresh guarantees in respect of subsequent assignees.
Grant of a lease
During negotiations, it is going to be more difficult for a tenant to object to a landlord's requirement for a guarantor to guarantee its AGA now that the Court of Appeal has confirmed that such arrangements are valid.
Assignment of a lease
A guarantor cannot guarantee the obligations of the new tenant to which the lease is assigned even if it wants to. This poses a particular problem for intra-group assignments. A tenant should anticipate that it will be a common condition on assignment that a guarantor is asked to guarantee its obligations in an AGA.
There is a suggestion that a tenant may not be able to assign its lease to its guarantor. It may be advisable to avoid this scenario until the position is clarified.
The Court of Appeal confirmed that an outgoing tenant's guarantor cannot directly guarantee the liabilities of the incoming tenant when a lease is assigned.
This has important consequences for alienation provisions which allow the landlord to control the assignment by a tenant of its lease. Corporate tenants often request provisions in leases which will allow assignments between companies in the same group without the landlord's permission. Landlords often agree to these arrangements, subject to a condition that the tenant's guarantor continues to guarantee the incoming tenant's liabilities under the lease. The decisions in the Good Harvest and K/S Victoria Street cases prevent this because:
- it will be impossible to obtain a further guarantee from the same guarantor for the incoming tenant;
- the Landlord and Tenant (Covenants) Act provides that it is only possible to obtain an AGA from an outgoing tenant, for which the outgoing guarantor can then be a guarantor, if the lease prevents the tenant from assigning the premises without the landlord's consent.
As a result of this, landlords may seek to prevent assignments between companies in the same group without their consent in order to obtain a sub-guarantee from an existing guarantor. Alternatively, landlords may attempt to impose some other form of control – for example, a financial test – to ensure that an assignee is suitable.
Note too that the Court of Appeal did not say whether tenants can validly offer the same guarantor through a string of intra-group assignments using a series of guarantees and sub-guarantees, or more complex arrangements, in order to provide a fresh guarantee from an outgoing guarantor.