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

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:

• Damage: Subtenants may not care for the property as the original tenant would.
• Overcrowding: Multiple subtenants may live in the property, breaching occupancy limits.
• No rent payment: The head tenant stops paying rent and the landlord is unable to recover rent arrears from the occupant
• Unable to evict: If a subtenant has been given an AST by the head tenant, a landlord would struggle to evict the occupant using section 21 or section 8, they would not actually be the occupants immediate landlord entitled to possession
• Legal complications: If issues arise, landlords may struggle to deal directly with subtenants, as their legal relationship is only with the original tenant.
• Insurance issues: Unapproved subletting can violate insurance policies, leading to denied claims if something goes wrong.
• Inheriting the occupant: if the head tenant leaves but sublets, the landlord may find themselves having to take over the existing tenancy and the unknown occupants. This creates risk if the head tenant acting as immediate landlord has not complied with the required compliances which may render a section 21 invalid

How Landlords Can Prevent Subletting

To prevent subletting, landlords should take the following steps:

1. Include a No-Subletting Clause: Ensure the tenancy agreement clearly prohibits subletting without written consent from the landlord.
2. Regularly inspect the property: Regular inspections and communications can help you monitor quickly any changes in the occupancy
3. Tenant Screening: Conduct thorough background checks to reduce the risk of tenants likely to sublet without permission.
4. Communication: Foster open communication with tenants, making it clear that subletting without consent is a breach of contract.
5. Enforcement: If unauthorised subletting occurs, landlords can seek a Section 8 notice under the Housing Act, using Ground 12 for breach of tenancy terms

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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