Practical Guide to the Joint and Several Guarantee (Caution Solidaire)

The joint and several guarantee remains the form of security most often requested by landlords to secure a rental contract. This guide offers a complete summary of its definition, how it works, how it differs from a simple guarantee, the formal requirements of the guarantee deed and the risks faced by the guarantor.

What is a joint and several guarantee?

By definition, a joint and several guarantee is the commitment made by a person, called the guarantor, to pay a tenant's rental debts in the event of non-payment or default: rent, charges or damage. Unlike a simple guarantee, the joint guarantee allows the landlord to claim repayment of the sums owed directly from the guarantor, without having to pursue the tenant first or prove their insolvency. For the landlord, it is therefore the most effective and fastest guarantee to trigger in the event of unpaid rent, within a standard rental contract, which explains why it is so widely preferred and why it can be required as soon as the application file is put together.

Simple vs joint guarantee: key differences

A simple guarantee requires the creditor to pursue the defaulting tenant first before turning to the guarantor. A joint guarantee, by contrast, allows the landlord to act directly against the guarantor from the first payment incident, without delay or any prior proceedings against the main debtor. The landlord chooses, at the time the lease is signed, the type of guarantee required of the prospective tenant, with the joint guarantee remaining by far the most favoured in the private sector.

Benefit of discussion

The benefit of discussion (bénéfice de discussion) is the right of a guarantor to require the creditor to pursue the debtor's assets first before turning to them. This mechanism, close to the benefit of division which applies when several guarantors share the same debt, only applies to a simple guarantee. By signing a joint guarantee deed, the guarantor expressly waives this benefit of discussion, which takes effect upon signature and allows the landlord to approach them first, without any other prior proceedings.

The guarantee deed: mandatory formalities

The guarantee deed must include several mandatory details: the identity of the tenant, the landlord and the guarantor, the amount of the rent and charges, and the maximum amount guaranteed, written in both figures and words. Since the ELAN law of 2018 and then the 2022 reform, the statement no longer has to be handwritten: it can be typed or electronically signed, provided it clearly expresses, in accordance with the text, that the guarantor has understood the nature and extent of their commitment. A compliant template remains the safest way to avoid any drafting error. The deed must be signed in two copies, one for the landlord and one for the guarantor, and a copy of the rental contract must be attached to it.

Guarantee deed: clauses to check

Before signing, it is worth checking several points: the maximum amount guaranteed by the deed, the duration of the commitment (fixed or open-ended), the presence of a clause waiving the benefit of discussion, and the date and validity of the signatures of each signatory to the document.

Supporting documents and proof of identity

The landlord may ask the guarantor for the same categories of documents as the tenant: valid ID, recent proof of income, and proof of address if necessary. The law sets a legal limit on the number of documents that can be requested to put this file together, in the same proportions as for the tenant.

Who can act as a guarantor

An individual, such as a parent or a friend, or a legal entity, company, business or specialised organisation, can act as a guarantor for a tenant. A rental guarantee falls under civil law and not commercial law, even when the guarantor is a company acting in a professional capacity. The landlord assesses the guarantor's solvency based on their income and professional situation before accepting their file. A foreign guarantor may be accepted under certain conditions, notably regarding residence or income received in France. Conversely, the landlord is entitled to refuse a guarantor whose solvency appears insufficient in relation to the amount of the rent.

Consequences of acting as a guarantor

By acting as a guarantor, a person takes on personal financial liability: if the tenant stops paying and the landlord enforces the guarantee deed, the guarantor must repay the rental debts from their own assets, with a real risk of seizure. If the guarantor dies, the guarantee obligation does not automatically end: it passes to their estate, unless it was a fixed-term commitment that has already expired. It is important not to confuse this commitment with the return of the security deposit, which concerns an entirely different sum paid by the tenant themselves when moving in.

Link with the rental contract

The guarantee deed remains legally separate from the rental contract, even though it is strongly recommended to attach it to the lease for clarity. The joint liability clause between flatmates, which binds each of them for the full rent if another defaults, has a direct impact on the extent of the guarantor's commitment in a flatshare: the guarantor must specify whether they are guaranteeing a single flatmate or the whole property. This point deserves particular attention at the automatic renewal of the lease, which can extend the guarantor's commitment without a new signature.

Before becoming a guarantor

Before any commitment, it is worth assessing your real financial capacity over the duration of the lease concerned. You can ask for a limit on the amount guaranteed in the deed, or favour a fixed-term commitment rather than an open-ended one, to better control the scope of your commitment. If in doubt about the clauses or legal consequences, consulting a lawyer remains the most prudent solution before signing.

Challenging and cancelling a joint guarantee

A guarantee deed can be challenged or cancelled in case of a formal defect: a missing mandatory statement, an amount not written in both figures and words, or the absence of a valid signature. A manifest disproportion between the commitment entered into and the guarantor's income may also be grounds for a challenge. To prepare an appeal, you should gather the necessary supporting documents and, as a last resort, turn to a lawyer specialised in tenancy law, who can assess the real chances of obtaining cancellation in court.

Alternatives to a guarantor

Several solutions make it possible to secure a rental application without going through an individual guarantor. Rent default insurance, taken out by the landlord, covers unpaid rent without making a third party liable. A bank guarantee, for its part, blocks a sum in a dedicated account with a bank or financial institution. Finally, private guarantee providers offer a paid scheme in exchange for an annual fee. Each solution has a different cost and level of protection for the tenant: for example, the flatshare offers with a guarantor, the coliving residences and the private apartment rentals offered by Colonies each include suitable guarantee arrangements, to simplify this often-blocking point in a housing search.