A Tenant’s Right to Sublet: Key Provisions from the Housing Act 1988

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.

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?

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.

I am puzzled by this article and I do not agree with this statement: '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.'

In the Housing Act 1988 section 15 has the following effects on assured tenancies, which include ASTs:

1. The section only applies to periodic tenancies. That is what it says if you read it carefully. If the tenancy has a fixed term the Act says nothing about whether or not there can be a prohibition against sub-letting (either absolute or with landlord's consent). There is nothing anywhere else in the Act, or anywhere else that I can find, which makes prohibitions against sub-letting unlawful in fixed term tenancies.

2. Section 15(1)(b) deals with an implied term in periodic tenancies. “Implied” means it is there even though it isn't (!) and “term” means a clause. The implied term is that the tenant shall not sub-let without the landlord's consent, and s.15(2) has the effect that the landlord does not have to act reasonably in withholding consent. There is one exception to this, in s.15(3)(a) which refers to periodic tenancies which are not statutory, in other words they were granted as periodic tenancies in the first place. This subsection says that if such a tenancy contains a term prohibiting sub-letting, then s.15(1)(b) will not apply so there is no implied term. The Act does not say explicitly that the term in the tenancy is lawful and effective but it says nothing whatsoever to imply that it is not. In fact the wording of s.15(3)a) is very good evidence that prohibitions against sub-letting are lawful and effective. If such terms were unlawful they would not be protected by s.15(3).

3. What about statutory periodic tenancies which include an express term prohibiting sub-letting? The Act does not explicitly say that the implied term overrides the contractual term, but even if it does the wording of the implied term is sufficiently strong to prevent unauthorised sub-letting.

4. What does all this mean for landlords? It means that you can include terms in all tenancy agreements, either fixed term or periodic, which prohibit sub-letting, either (a) absolutely, or (b) conditional upon consent which can be withheld either unilaterally or reasonably. It probably means such terms will survive the conversion of an expired fixed term into a statutory periodic tenancy but if they don't then the implied term in s.15(1)(b) is good enough. In fact it means that contrary to what the author says section 15 of the 1988 Act is very good evidence that tenants cannot sublet without their landlord's consent.

Of course enforcement of tenant breaches is still a big problem but that doesn't change the law.

Reply to the comment left by Michael Crofts at 02/10/2024 - 18:03Addendum:
Shelter's legal advice about sub-letting of fixed term tenancies says: 'Fixed term tenancies
The Housing Act 1988 does not regulate the subletting of fixed-term assured tenancies, therefore a fixed-term tenant may sublet unless the tenancy agreement prohibits it. If the fixed-term tenancy prohibits subletting without the landlord's consent, consent cannot be unreasonably withheld.' Landlord and Tenant Act 1927 s.19(1)
This makes it clear that a fixed term tenancy CAN prohibit sub-letting.
https://england.shelter.org.uk/professional_resources/legal/renting/subtenancies/assured_or_assured_shorthold_tenant_grants_a_subtenancy

If a tenant sublets in breach of contract then the sub-tenants AST is unlawful. All a landlord has to do is serve a common law Notice to Quit on their tenant, (because the tenancy is not assured as they don't live there). Once it expires, the tenancy ends and the sub-letter becomes a trespasser who can be evicted by changing the locks whilst theyre out.

Reply to the comment left by DPT at 03/10/2024 - 14:28
@DPT
Agreed.
Your comment begins 'If a tenant sublets in breach of contract .....' , which means that there must be a clause prohibiting sub-letting.
The article says '....any clause in an AST that states otherwise could be deemed unenforceable as contracts cannot override statute law..'
You and the article can't both be right.
I think you are right and the article is wrong.

I also think the article is wrong as s15 HA'88 places a restriction only on SPTs but does not appear to either prevent or allow sub-letting of fixed term tenancies or CGTs. Therefore a contractual prohibition should be enforceable.

Reply to the comment left by DPT at 03/10/2024 - 14:28
It seems such common sense that if the tenant is required to ask for permission to sublet, but doesn't get permission, and does sublet - then the subtenancy would be illegal and null and void. But I looked into this point a while back and was shocked to find out that English law hold the rights of tenants above other considerations, and so if the subtenancy was taken out in good faith then it IS considered to be legal! This is evidenced by Disgruntled Landlady's experience with a Rottweiler wealding sub-tenant described in her post above.
I don't want to broadcast to the public that this is possible, but neither do I want landlords to be ignorant of the risk to their property.

Reply to the comment left by John Frith at 04/10/2024 - 13:25
@John Frith
Please provide more information about the advice you received. I ask this because when a mesne tenancy ends and none of the possible exceptions apply, the head landlord can certainly evict the subtenant. The exceptions do not apply in the case of a sub-letting without consent in breach of covenant because such a subletting is unlawful, the subtenant is a trespasser, and they are not covered by the Protection from Eviction Act 1977. The head landlord does not need to obtain a court order to evict the subtenant and in fact the last thing you should do is go to court because the current cohort of judiciary give the impression of being politicised and partial.
See https://england.shelter.org.uk/professional_resources/legal/renting/subtenancies/position_of_subtenant_when_mesne_tenancy_ends