If you are a landlord and have a tenant subletting without consent, then there’s a simple choice: either you follow a process to clarify the situation, or do nothing at all.
For some landlords, finding a great tenant who pays their rent on time and also keeps their property in good order and who is friendly and easy to deal with, may find this will work in their favour should they discover that the tenant is subletting.
But what is subletting?
Subletting occurs when the landlord’s existing tenant decides to let part or all of the property to another person. Or more than one person.
This is a perfectly legal move if the private landlord has given their permission – in writing – for the subletting to take place.
If they haven’t given permission, then the tenant is in breach of their tenancy agreement. However, a landlord must have a valid reason for refusing a tenant’s request to sublet the property.
There are various reasons as to why a tenant may decide to sublet, including:
- They need to leave the rental property before the contract ends;
- They have had a drop in income and need extra money to pay rent;
- They may want to go travelling;
- If a tenant moves out before the tenancy ends and they need a replacement to move in.
For a property to be considered as a sublet, the original tenant must have exclusive access to at least one area of the property being sublet.
Also, any rent being paid by the person who is renting from the tenant will pay them rather than the landlord.
What are the rules on subletting?
The rules on subletting are straightforward and assured, as well as assured shorthold, tenants may be able to sublet the property, depending on what is stated in the tenancy agreement.
Should there be a term covering subletting, then this will apply.
There may also be a reference to the landlord needing to give consent and they must do so in writing. If they refuse, they need to give a reason why. This reason must not be unreasonable.
For a periodic tenancy, that’s a tenancy that may run from month-to-month, a landlord can refuse a tenant permission to sublet without having to give a reason.
Are tenants allowed to sublet?
It’s always best for a landlord to have a tenancy agreement in place to cover issues such as subletting because this can be a legal minefield.
Indeed, it’s always best to seek professional legal advice from a solicitor when drawing up a tenancy agreement or utilising the services of a professional landlord organisation.
That’s because they will have lots of experience in knowing whether the tenant is allowed to sublet and they will help provide the legal advice if this is something you do not want to happen. If the tenant is in breach of their tenancy agreement when subletting then the landlord can consider eviction proceedings. (It will be the Section 8 Notice under the Housing Act 1988, Ground 12).
Can a landlord prohibit subletting?
As mentioned, a landlord can prohibit subletting within their tenancy agreement but the landlord also needs to appreciate whether the agreement covers a fixed-term tenancy or an assured shorthold tenancy.
And should the tenant ignore their agreement and sublet without permission, the landlord is left with two routes to resolve the situation:
- The landlord can come to an agreement with the current tenant and the sub-tenant, particularly if the sub-tenant is replacing someone who has moved out of the property. This is worth considering if the rent is being paid and the new sub-tenant is causing no issues.
The easy solution here is to draw up a new tenancy agreement, so the landlord is protected and they should not accept any payment until there’s a legally strong tenancy agreement in place first.
- For those landlords that have a tenant renting out the entire property or several rooms but is not living there and is living at a different address instead, then there are serious legal considerations. Essentially, the tenant will lose their tenancy status so a landlord can serve a notice to quit.
The most important is that those sub-tenants may believe that the original tenant is actually the property’s landlord so when they report issues with property maintenance, for example, these may not be resolved and the landlord could be left with a big bill for repairs.
Commercial tenant subletting without consent
For those landlords who have a commercial tenant subletting without consent, then their situation is more complex legally.
Essentially, the tenant is offering a sublease, also called an underlease, so you need to check the lease has expressly stated that they cannot sublet any part of the commercial premises. The landlord also needs to check whether the tenant needs to consult beforehand with them should they do so.
In most cases, a landlord’s commercial lease will prohibit subletting completely or have restrictions in place should it occur.
It’s important to appreciate that subletting is not a criminal offence and the landlord will not be bound by the sublease and they could bring an action against the tenant for breaching the original lease.
How to prove illegal subletting
Trying to prove that a tenant is illegally subletting a landlord’s property can be complicated.
It’s important that the landlord gains entry to the property at an agreed time with their tenant or tenants to check on who is living there.
This may also highlight that there’s a problem, if:
- The tenant is difficult about letting a landlord gain entry as this may signal a potential problem;
- Antisocial behaviour: If there are more tenants in the property than have signed the tenancy agreement, then there may be issues with antisocial behaviour and neighbours complaining to you, the local authority and to the police;
- Extra rubbish: One of the biggest signs for a tenant subletting is for the piles of extra rubbish that are being generated;
- Wear and tear: Again, having more people in the property than have signed the agreement will be reflected in the level of wear and tear and other damage to the property.
Illegal subletting consequences
One of the issues when subletting is that the landlord may be left with hefty property maintenance bills because the sub-tenant has been complaining to the original tenant thinking they are the landlord.
However, there are other issues for illegal subletting that need to be considered and these include:
- Check your mortgage and insurance
Some mortgage and insurance providers will not allow subletting and if you ignore the situation then your contracts could be voided. You’ll need to avoid this by checking thoroughly the tenancy agreement before allowing a sublet to take place.
- The tenancy ends
Another potential situation for a landlord is if the original tenant decides they want to move out, leaving behind the sub-tenant. This then leaves the landlord with a situation of trying to evict a tenant who doesn’t have a tenancy agreement and this can be a complicated process to resolve.
When a landlord suspects subletting is taking place
Essentially, whenever a landlord suspects subletting is taking place, they should talk to their original tenant to discuss the issue and how it can be resolved amicably.
If the landlord has a tenancy agreement that doesn’t mention subletting, then this is a clause that needs to be added so they are protected in future.
This issue of a tenant subletting without consent also raises the prospect of a landlord having to spend more time on tenant referencing to ensure they take on trustworthy and reliable tenants.
Finally, the best way to detect whether your property is being sublet and prevent the issue from escalating is to undertake regular property inspections with the permission of the tenant to ensure everything is as it is meant to be.
When it comes to a tenant subletting without consent, then this is something that needs to be tackled as soon as possible and if you need to pursue legal action to evict the tenant, then you should take professional legal advice before doing so.
As a landlord, you may find this .Gov publication about ‘Landlord and tenant rights’ useful.