Tenant is sub letting, in rent arrears, and out of the country!

Hi Billy,

First things first check if your insurance is still valid as this is your largest and most immediate risk.

Does your tenancy agreement expressly forbid subletting? If he has broken the Agreement you could just issue a Section 21 notice and evict in two months.

Reply to the comment left by "Old Mrs Landlord" at "26/07/2016 - 18:52":

who do you serve it on? the sublettees are illegals--not their fault but illegals all the same--could they be classed as squatters? i do not know but squatting is a criminal offence

I think it would be an idea to at least ask the sub-letting tenants to pay you directly from now on whilst also issuing the Section 21 to the legal tenant. There may be some legal/insurance problems with this, but there are anyway, and at least it could mitigate your losses. Others may disagree with this and can point out the pitfalls, I'm sure.

Good luck with it - I've had a similar situation with the tenant going off to Barcelona to live and giving the keys to his druggy son and girlfriend and the tenant then telling us the rent arrears were none of his business as his son lived there now! I can't remember how it ended - we were lucky and they didn't stay too long - probably chased out of the area by drug dealers or something.

Agree that checking the insurance position is the priority here.

If you want to clear the house and obtain vacant possession, you cannot issue a section 21 notice for another three months if there are still 5 months left to run on the term. You could terminate earlier using a section 8 notice citing ground 8, 10 and 11 for rent arrears and ground 12 for unlawful subletting (providing this is actually prohibited in the AST): this will carry a two week notice period after service.

Turnaround times to get the claim through Court will depend on where in the country the claim must be heard: a lot of the London Courts (as well the larger regional Courts such as Birmingham) are under a huge amount of pressure with workloads and it may take several weeks to get a hearing.

In terms of cost, the Court fee for a possession claim is currently £355. The cost of preparing the claim will depend on whether you wish to instruct a solicitor or do the legals yourself. If you intend to seek possession for unlawful subletting I would suggest at least consulting a solicitor before you serve notice (if not to run the claim for you) - they will be able to advise you how best to approach the claim and what you can do to avoid inadvertently authorising the subletting, which might leave you with a handful of subtenants to formally evict once you have terminated the head tenancy.

P.S. I would also suggest you check the service provision in the AST. Most ASTs allow you to serve any notices at the property address, whether or not the tenant is actually there.

If your tenant keeps a room for himself and it is still his home - and he's just away for the time being - then he is not 'sub-letting' as such but rather he has rented rooms out to lodgers? There are important differences.

The first thing to be clear about is that you are not the lodger's landlord, your tenant is. The lodger's need to be aware of that.

My understanding is that you cannot simply add them to the tenancy agreement. You need to end the old tenancy and start a new, joint one if you wanted to do that. The existing sole tenant would need to sign a notice to quit ideally for you to do that and re-issue a new joint tenancy to them all. Although I don't see a benefit in doing that and it would mean a fair amount of admin.

I would treat the lodgers as a side issue to the fact you have a tenant that is in rent arrears and is either breaching other terms of the tenancy or is being sly by not informing you of lodgers. You need to deal with him in terms of having conversations in the first instance. If it comes to it yes, you must serve a valid notice and then obtain a court order to then instruct court appointed bailiffs to evict him. Legal advice/a solicitor would be best usually, yes. This process does take time so it may be best to serve notice first and then discuss the situation later. If it can be resolved then fine, if not, you have already served the notice and not wasted any time. To give you an idea it's written notice (generallly requiring 2 months which can't end within a fixed term period), obtain a possession order (about another 2 months plus £355 court fee), then obtain a bailiff warrant (another 2 months plus £110 court fee). Plus solicitor fees. Timescales all depend on the court you use and their workload at that time.

Obviously difficult to be sure without knowing the people at the property. However i had a similar situation..i didnt like the look and attitude of the sub let persons.I took legal action to have them out. It took about three months and i recovered my property. Dirty but no real damage.Once out i heard a lot more about the individuals concerned..all sorts of issues and they had upset various neighbours. My advice get shut of both your proper tenant and the subletter. Start again.
Heres a tip for anyone letting their own property...a great way to avoid bad tenants....go and see the prospective tenant at their CURRENT home before signing up.You will see exactly how they live, ...where they live..with whom.. and whether their circumstances are as portrayed.Saved me a few nasties i believe. Such as one house (current before wanting mine ).... had glass all over the driveway..food bits on the floor and lawn grass a foot high..yet they had appeared neat, tidy well dressed decent sorts when they did the viewing.If anyone tells you.(.either a prospective tennant or any "legalise" type) that you cant do this they are wrong. You can . An hours effort can save thousands! .At a positive viewing..I would usually say..well you seem ok..i will get papers together and come and see you at yours ....if they dont want ya there walk away from them. The majority will have no objection.

Reply to the comment left by "Old Mrs Landlord" at "26/07/2016 - 18:52":

I may be missing something, but on a fixed term agreement, the s.21 cannot take effect until the expiry of the agreement. If the tenancy agreement says no sub-letting, you could evict the tenant using a discretionary ground 12 - though would not necessarily get possession. Serve the illegal occupiers notices to quit, usually 28 days.

I would not add them to the original agreement. If they seem decent, get credit checks done and if they pass, give them new 6 months agreements in their own names. Evict the tenant who has probably gone away on the proceeds.

My understanding of adding subletters is that since they may be individuals not related to the tenant, therefore effectively you are turning your family home into an HMO, for which if you add their names and since they are not related, it could be interpreted as unlicensed HMO, and all those things that goes with an HMO requirement. When I let my house I always emphasise to my tenant strictly no subletting other wise he would be breaching local council rules on illegally converting a premises into unlicensed HMO.
Unless the subletters or lodgers are related to the tenant in some way.