The questions tenants ask about the difference between a simple deposit and a joint and several deposit are as frequent as they are natural. Although there is no legal obligation to do so, almost all landlords ask their tenants to provide a surety to guarantee payment of their rent. In other words, prospective tenants must provide proof that a natural or legal person is willing to pay any rental debts they may incur should they default. This person must sign a deed of guaranty for his or her commitment to have any legal value in a debt collection procedure.
However, this deed does not have the same effect if the guarantor agrees to sign a simple or joint and several guarantee. It is therefore essential to know in advance what the guarantor is exposing himself to, so that he commits himself with full knowledge of the facts.
A surety deed is a personal surety deed, i.e. an act of commitment to the creditor (the lessor) by a third party to the debt of the debtor (the lessee). In this way, the landlord no longer has just one debtor, but two: the principal and the accessory. However, in the case of surety bonds, the accessory debtor enjoys the "benefit of discussion".
If it does not include any mention of joint and several liability, a surety deed is by default considered simple. In this case, it automatically gives the guarantor the benefit of discussion of the debt. The lessor's recourse against the guarantor then becomes subsidiary, and can only intervene when the lessee has proved insolvent following all actions brought against him/her.
In legal terms, joint and several liability means that two people share the same obligation. In the case of a lease, this obligation concerns the payment of rent, service charges and the cost of repairing damaged property. But this obligation must be born of a clear intention. For this reason, the guarantor must explicitly state in his deed of joint and several guarantee that he waives his right to discussion.
Under these conditions, the lessor no longer needs to wait for proof of the lessee's insolvency before taking action against the guarantor. The guarantor then becomes a debtor with the same rank as the guaranteed tenant, i.e. co-lead debtor.
Having a valid deed of guarantee in your possession gives the lessor a legal basis for summoning the guarantor to pay the tenant's rental debt. He is thus authorized to send the guarantor a formal notice and then a summons to pay in order to recover the sums owed to him. In practice, however, the difference between a simple surety and a joint surety means that the guarantor must follow a specific procedure for recovering unpaid sums.
Since the guarantor has the benefit of discussion, the simple surety grants the guarantor a protective measure that obliges the lessor to sue the lessee first, as principal debtor, and only then the guarantor, as second-ranking debtor. Consequently, the guarantor is only liable to reimburse the lessor to the extent that recovery proceedings against the lessee have failed. This is particularly the case if the tenant is not solvent, i.e. if the assets he owns and which could be seized are not sufficient to settle his debt.
Unlike the simple guarantor, who distinguishes between the lessee and the guarantor according to their rank in relation to the lessor, the joint and several guarantor qualifies both as principal debtors. As a result, as soon as a debt goes unpaid, the landlord is entitled to initiate collection proceedings against one or the other, or even both, without distinction. This is the main reason why landlords require their tenants to provide a joint surety rather than a single surety.
| Simple bond | Joint and several surety | |
| Does the guarantor have an obligation to pay the tenant's debt? | Yes | No |
| Does the guarantor have the right to discuss the debt? | Yes | No |
| When can the guarantor receive the first demand for payment? | As soon as the tenant's insolvency has been demonstrated | As soon as the tenant fails to pay for the first time, without the need to have contacted the tenant beforehand. |
| Does the guarantor risk legal proceedings in the event of non-payment by the tenant? | Yes | Yes |
| When can the guarantor be summoned to pay the tenant's debt? | Only after the landlord has exhausted all legal remedies against the tenant. | As soon as the tenant fails to pay for the first time, without the need to have contacted the tenant beforehand. |
A joint and several guarantee is clearly a landlord's best ally in the fight against unpaid rent. However, given the commitment required of the guarantor, it is often difficult for tenants to find someone who trusts them enough to agree to guarantee their rent. That's why the Garantme joint and several guarantee is such an advantage: a guaranteed debt of up to €96,000 per year, with no deductible or waiting period, even in the case of an unstable professional situation and irregular income. With Garantme, tenants no longer have to find themselves in the uncomfortable position of having to call on family and friends for money.