Is subletting illegal in the UK? Find out what subletting involves and the legal implications for tenants and landlords.
Subletting occurs when a tenant lets out part or all of the property to someone else, who then becomes a subtenant.
The tenant requires permission from the landlord to sublet and this should be made clear in the tenancy agreement.
Read on to find out more about subletting and the action landlords can take if tenants are subletting against the landlord’s wishes.
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What is subletting?
There are several reasons why a tenant might want to sublet, and as you might have already guessed, the most common is… money.
Picture this: a tenant needs to move quickly and can’t manage paying rent on two places at once. Instead of trying to end the tenancy prematurely, they can sublet the property and let the subtenant’s rent cover the cost.
If the landlord has expressly stated in the tenancy agreement that subletting requires their written consent, doing so without it constitutes a breach of the agreement. It’s important for landlords to clearly define subletting: it entails granting the subtenant exclusive access to all or part of the property.
On the other hand, temporarily accommodating a friend or partner without charging them doesn’t amount to subletting. Likewise, housing a lodger doesn’t fall under the category of subletting; a lodger, under a license agreement, has the right to occupy a room, rather than having exclusive possession of it.
When a tenant decides to help out a friend or considers taking in a lodger, it’s advisable to inform the landlord. Maintaining open lines of communication is beneficial for fostering a positive tenant-landlord relationship and can prevent misunderstandings from escalating.
Is subletting illegal?
This all depends on whether subletting is written into the tenancy agreement. The options are as follows:
With permission from the landlord
In rare cases, a tenancy agreement may explicitly state that a tenant can sublet without consulting the landlord. However, we don’t recommend landlords include this clause, as it limits their control over who resides in their property. If this clause is in your contract, the tenant can go ahead and sublet the property.
More commonly, the agreement will stipulate that tenants must obtain written approval from the landlord before subletting, with the understanding that the landlord should not unreasonably withhold consent.
If the landlord refuses, that should be the end of the matter. Keep in mind, even if the agreement doesn’t mention subletting, the tenant should still seek the landlord’s approval.
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Without permission from the landlord
Typically, landlords will include a clause in the tenancy agreement prohibiting subletting. After all, allowing tenants to sublet without permission offers no benefit to the landlord.
The tenant gains income from the subtenant, while the landlord risks unknown individuals residing in the property, potentially leading to complications.
If subletting is expressly forbidden in the tenancy, the tenant breaches the agreement by proceeding with it.
What if a tenant asks for permission to sublet?
If the tenancy agreement forbids subletting or requires the landlord’s permission, you can simply say no. However, there may be situations where you are open to the idea.
For example, some may consider it a significant plus to keep the property on a long-term let with a reliable tenant, ensuring steady cash flow.
If you decide to permit the tenant to sublet, first check that your Rent Guarantee Insurance, or landlord property insurance covers subletting, to avoid invalidating the policy and getting any nasty surprises. You should also verify subletting is allowed under the terms of any mortgage you have on the property.
If your tenancy agreement forbids subletting but you choose to agree to the tenant’s request, you have two options: create a written agreement that permits the specific subtenant to sublet, or issue a new tenancy agreement to the original tenant that allows subletting.
However, consider whether it might be simpler to end the old tenancy with the original tenant and start a new tenancy with the subtenant, who would then become a regular tenant. This is often preferable if the original tenant doesn’t plan to return to the property.
If you agree to a sublet, make sure the new tenant is properly referenced and schedule regular property visits to confirm everything is proceeding as expected.
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My tenant is subletting without permission – what can I do?
If your tenant is subletting the property without your consent and you decide it shouldn’t continue, you have several options available.
1. Demand the subletting ends
If the tenant is subletting without permission, they are breaching their tenancy agreement. The landlord is well within their rights to demand an end to the subletting.
If the tenant persists, the landlord can pursue further action.
2. Communicate with the subtenant
The subtenant may be unaware that they are renting from the tenant rather than the property owner (or leaseholder if the property is leased).
It’s wise to reach out to the subtenant to clarify that they are residing in the property without your permission, that the tenant isn’t the property owner, and that if the tenant is successfully evicted, the subtenant will also need to vacate the premises.
3. Eviction
With a tenant making a clear breach of the tenancy agreement and refusing to remedy the situation, then the landlord can begin possession proceedings to evict them.
This process can progress quickly, with the landlord serving written notice seeking possession of the property with a Section 8 Notice, which will fall under the discretionary Ground 12 of the Housing Act 1988, as amended by the Housing Act 1996.
Once the notice period expires, and if the tenant has not vacated the property, landlords can then apply to the court for a possession order.
Communication with tenants is key
In some cases, landlords may have no alternative but to evict a tenant who is subletting without permission.
Maintaining transparent communication is essential in all aspects of the landlord-tenant relationship.
In this way, tenants are fully informed of their rights and responsibilities and are more inclined to accept a landlord’s decision to disallow subletting.
It’s always best, however, that the landlord seeks legal advice to ensure they are following the letter of the law. OpenRent partners with Landlord Action, the eviction and housing law specialist, which offers legal support to landlords throughout the course of a tenancy.
Nevertheless, landlords should seek legal guidance to ensure compliance with legal requirements. OpenRent has partnered with Landlord Action, specialists in eviction and housing law, providing legal help to landlords throughout the tenancy.
