Is your tenant illegally subletting your property?

If a landlord rents a property directly to a tenant and they decide they wish to let out part or all of the property to another tenant, it’s called subletting.

How do landlords know if a tenant is in breach of their tenancy agreement, and what can they do if a tenant is subletting without permission?

If a landlord agrees that a tenant can sublet the property, there is usually a clause incorporated into terms of a tenancy agreement which covers whether or not subletting is allowed. If a tenancy does contain a clause regarding subletting it may or may not state that permission is required from the landlord. If the clause states that the tenant must seek permission before subletting the property, then a landlord is unable to refuse permission if the request is reasonable. If the tenancy is a periodic one (likely if it runs month to month after the expiry of a fixed term) then specific rules apply.

If a lease lacks a clause dealing with the issue of subletting then the tenant needs permission from the landlord to sublet, who can refuse for any reason. For fixed term tenancies i.e a period of 6 months or one year, the tenant can sublet without the consent of the landlord if subletting is not mentioned in the tenancy agreement.

Assured shorthold tenancies

The majority of tenancy agreements issued by private landlords these days are Assured Shorthold Tenancy (AST) agreements for a fixed term of 6-12 months. If the tenancy started after 28^th February 1997 and rent is paid directly to a private landlord (and no accommodation is shared with the landlord), the tenancy is likely to be an AST.

If a landlord issues an AST agreement, it is vital that the agreement covers the issue of subletting, as this will apply for the whole length of the tenancy. To determine if a tenant is subletting illegally, it’s necessary to establish if they are in breach of their tenancy agreement.

What action can landlords take against subletting?

If a tenant is subletting without consent from the landlord, it’s likely they will have breached the terms of their tenancy agreement and the landlord can take action to evict them from the property.

Possession proceedings can be started quickly, but it’s important to follow the correct legal process. When tenants have broken their agreement, a landlord can serve written notice seeking possession of the property in the form of a Section 8 Notice, citing the discretionary Ground 12 of the Housing Act 1988 as amended by the Housing Act 1996. When the notice expires (usually within 14 days from date of service), landlords can apply to the court for a possession order and the judge may decide if a tenant can reasonably be evicted.

If a tenant sublets the entire home without permission they will lose their tenancy status and the landlord can serve a notice to quit without providing legal grounds or proving to the court it is reasonable to evict them. Notices must be given in writing and include an expiry date – the notice period must be at least 4 weeks and landlords must allow at least 2 days for service of the notice.