What can you do if your tenant is subletting?

A quick guide to the legalities

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. This isn’t always a problem, if the tenant in question has the landlord’s permission to do so. Problems arise, however, when tenants sublet all or part of the rental property without the permission of their landlord. How do landlords know if a tenant is in breach of their rental agreement, and what can landlords do if a tenant is subletting without permission?

Is your tenant subletting illegally?

There is normally a term in the tenancy agreement which covers whether or not subletting is allowed. If a landlord issues tenants with an Assured Shorthold Tenancy 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.

Assured short-hold tenancies

The majority of tenancy agreements issued by private landlords these days are Assured Shorthold Tenancy (AST) agreements. If the tenancy started after 28th 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 assured shorthold one.

Does your tenant have the right to sublet?

This depends on what a tenancy agreement says. If it has a section detailing that the landlord’s consent is needed for subletting, 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 the lease says nothing about subletting, the tenant needs permission from the landlord to sublet, who can refuse for any reason. For fixed term tenancies (for example, a tenancy of six months or one year), the tenant can sublet without the consent of the landlord if subletting is not mentioned in the tenancy agreement.

What action can landlords take against subletting?

If a tenant is subletting without consent, it’s likely they will have broken terms in their tenancy agreement. This breach of contract means that the landlord can take action to evict them from their home. 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, landlords can apply to the court for a possession order and the judge may decide if a tenant can reasonably be evicted.

Loss of tenancy status

If a tenant sublets the entire home and/or if they sublet the property and move elsewhere, 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. For assured shorthold tenants, a Section 21 notice can be issued at any time, but a landlord can’t evict the tenants during the first six months of their tenancy or at any time during the fixed period. If a Section 21 is issued, tenants must be given at least two months’ notice.

If you are having issues regarding a tenant subletting illegally, talk to a solicitor who specialises in landlord and tenant disputes.