10:01 AM, 23rd September 2024, About 7 days ago 3
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It’s every landlords worst nightmare, you do a property inspection or your trade arrives and low and behold the person living in the property is NOT the tenant.
Subletting is not an uncommon practice and can be a legally complex issue, particularly when it comes to the rights and responsibilities of both the original tenant, the occupant and the landlord.
Understanding Subletting and Its Legal Implications
Subletting involves the tenant (or “head tenant”) renting out the property or part of it to another individual, known as the subtenant. The original tenant remains legally responsible for fulfilling the terms of the tenancy agreement with the landlord, even if they are not residing at the property themselves.
In many cases the head tenant will issue the subtenant with an AST meaning the head tenant becomes the subtenants immediate legal landlord and therefore will be responsible for all the things a landlord is responsible for such as, Right to rent checks, providing compliance documents, protecting deposit etc…. – “have I lost you yet? No!, good”
Subletting is NOT illegal
It is a common misconception that subletting is illegal or prohibited as such this is a standard clause in most ASTs, many believe a tenant must get the landlords permission to sublet or risk losing their tenancy.
This is not the case, subletting under a fixed term tenancy is not illegal, but it may require the landlords consent to do so
In contrast, it is illegal for a council or housing association tenant to sublet their rental property without consent, this can result in a criminal conviction and any rent received by the head tenant being recovered
Key Provisions of the Housing Act 1988 on Subletting
The Housing Act 1988 is one of the key pieces of legislation that governs private tenancies in the England, including matters related to subletting.
It is not illegal or prohibited for a tenant to sublet when they have an active fixed term tenancy and any clause in an AST that states otherwise could be deemed unenforceable as contracts cannot override statute law.
Section 15 of the Housing Act 1988
This states that there is an implied term in statutory periodic tenancies ONLY that a tenant cannot sublet without the landlords consent, However, this implied term is not of effect in fixed term or contractual periodic tenancies.
For clarity – Statutory vs Contractual
In short a contractual periodic is one that arises at the end of the fixed term tenancy when the fixed term had a ‘continuation clause’ which reads something like “ This tenancy shall continue on the same terms month by month thereafter”
A statutory periodic is created when the fixed term ends and their was not continuation clause or the fixed term made it clear the periodic would be statutory.
If a tenant on a statutory periodic tenancy proceeds to sublet without permission, the landlord may seek possession of the property on the grounds that the tenant has breached the terms of the tenancy, potentially leading to eviction proceedings. This would be done via section 8 ground 12, the downside here is that ground 12 is discretionary meaning it would be up to the judge to decide if eviction was reasonable.
Common Subletting Risks
Subletting can introduce risks for landlords, such as:
How Landlords Can Prevent Subletting
To prevent subletting, landlords should take the following steps:
By understanding their legal rights and taking proactive measures, landlords can effectively manage and prevent unauthorised subletting, safeguarding their properties and tenancy agreements.
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Paul Essex
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Sign Up12:59 PM, 23rd September 2024, About 7 days ago
But of course breach of tenancy is in the discretionary part of Section 8 so time and money and in the meantime the fake landlord can just walk away.
John Frith
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Sign Up17:13 PM, 23rd September 2024, About 7 days ago
When I read the title I thought it would address the issue I was struggling to understand, but sadly not.
The article doesn't clarify what happens if a tenant takes (or thinks they take in) a lodger.
I get contrasting advice from "fine, it's no problem" to "whatever your tenant thinks, they are creating a subtenancy that legally will be construed as an AST". The repercussions of which the article does spell out.
Would Julie like to take on this point?
Disgrunteld Landlady
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Sign Up8:16 AM, 24th September 2024, About 6 days ago
John I had a subletting situation a few years ago - my problem turned out that the Lead Tenant who didnt pay the full deposit, then stopped paying rent and apparently proceeded with Marijuana dealership! had moved in someone with a Rotweiler. I could not evict as I didnt know the person with the Rotweiler so have their name is critical. In my situation the Agent was a star who persuaded them to leave. I have had another issue where a tenanted decided to leave having left such bad mould that the property turned out to be uninhabitable - for which I am in court 18 months later still! I can confirm the Courts are anti landlady. This tenant attempted to move in someone who then refused to sign an AST but he took a large amount of money from her for his deposit and despite this he kept asking for his deposit back. I've just added a new clause to my AST as suggested by Julie above. I would say anyone moving into your property is not ok for all the reasons above. If you have the name you need all the right to rent, credit / ref checks, bank proof of income, passport copy to then make a decision to issue an eviction... just my opinion here.