Nativ Winiarsky on The Role of Guarantees in Landlord-Tenant Agreements

Every lease tells a story, but like every story, this too has a different ending, and never a predictable one. Tenants fall behind, businesses fold, and circumstances change in ways that neither landlord nor tenant can really control. When that happens, a landlord may or may not have a way to get their money back depending on whether there is a guarantee.

The guarantee clause is not the same as other clauses that are used in talks. It’s the document that can turn a risky rental into a safe one, or it can leave an owner open to liability if it’s badly written or can’t be enforced. When it comes to business real estate, guaranties are not just extra information; they are useful tools for making plans.

Few litigators understand their nuances better than Nativ Winiarsky, a partner at Kucker Marino Winiarsky & Bittens LLP. He has fought many landlord-tenant cases in some of New York’s toughest courts and seen how guarantees can work as shields or fall apart when tested. Treat guarantees with the same seriousness as rent clauses, because they often mean just as much in times of dispute. This is his clear message to property owners.

What a Guarantee Really Means

At its core, a guaranty is a promise by a third party, often an individual or parent company – to honor the tenant’s obligations if the tenant fails to do so. It is a landlord’s insurance against failure in real life. However, not every guarantee is the same. Some are total and unconditional, which means they will be paid no matter what. Others are limited and only work for certain amounts of time or amounts. Even though the differences look small on paper, they have huge effects in court.

As Nativ Winiarsky explains, landlords too often assume that any guarantee provides full protection. The reality is that enforceability depends on drafting, statutory compliance, and the willingness of courts to uphold the provision under the facts of the case.

The Litigation Lens

The real test of a guarantee is not when the lease is signed, but when the tenant breaks the lease and the owner tries to collect. At that point, clear writing and precise language make the difference between getting better and being frustrated.

Nativ Winiarsky has seen landlords attempt to enforce guaranties only to face defenses rooted in ambiguity. Was the guarantee continuing or limited to the initial lease term? Did it survive the assignment?? Was it properly executed by an authorized party? Courts scrutinize these details closely, and landlords who rely on vague language often find their guarantees unenforceable.

To put it simply, a guarantee is only as strong as the paper it’s written on and the foresight of the parties who negotiated it.

The Impact of Legislative Shifts

In the past few years, New York’s laws have changed how guarantee enforcement works. During the pandemic, some protections made it harder for landlords to demand personal guarantees from business tenants who were affected by shutdowns. Some of those measures have since expired or been challenged in court, but they show how easily guaranty clauses can be changed by the law.

As Nativ Winiarsky notes, this underscores why landlords cannot treat guaranties as static. They exist within a shifting legal environment, and owners must stay informed of legislative changes that could affect enforceability.

Drafting with Precision

The art of drafting guaranties lies in anticipating future disputes. Effective guaranties specify scope, duration, and conditions with precision. They state whether obligations extend to renewals, whether liability is joint and several, and whether notice provisions apply.

Nativ Winiarsky stresses that landlords who rely on generic language are taking unnecessary risks. A guarantee shouldn’t be taken from a template; it should be made to fit the lease and the person. When disputes get worse, small things like waiving defenses, attorney fee rules, and agreeing to the court’s authority can have a big impact on the result.

Business Considerations

Beyond the legal framework, guarantees carry business implications. In competitive markets, insisting on strong guarantees may discourage tenants. In weaker markets, landlords may accept weaker guarantees to secure occupancy. The calculus requires balancing risk tolerance with market realities.

From Nativ Winiarsky’s perspective, this is why guarantees must be evaluated as business decisions as much as legal ones. It’s possible that a guarantee that looks good on paper but keeps out good landlords won’t help in the long run. In contrast, a weak guarantee could lead to disagreements that cost a lot of money and cancel out any short-term benefits of leasing.

Enforcement Realities

At some point, even the best guarantee has to be put into action. Guarantee enforcement litigation can be complicated, involving motions for summary judgment, investigation into the assets of the guarantor, and possible appeals. Property owners need to be ready for these facts, such as the costs and times needed for regulation.

For Nativ Winiarsky, the lesson is clear: guarantees are valuable only when landlords are willing to enforce them strategically. That means assessing the guarantor’s financial stability, preparing evidence meticulously, and approaching litigation as an extension of sound asset management.

For property owners, the most important thing to remember is that guarantees are important and should be taken seriously. Look at them not as pieces of paper, but as safety measures. In this way, landlords turn guarantees from words on a page into real safety in a market that is always changing.