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What is subletting
Subletting is when an existing tenant rents out a part of the whole property they rent to another person. That person is referred to as a subtenant and the original tenant is their immediate landlord, as opposed to the original owner of the property.
There may be times when you wish to let out a spare room in the property you are renting. Or perhaps you plan to go on holidays for a period of time and would prefer someone to live in your home and cover rent while you are gone.
If you wish to sublet all or part of your rented accommodation then you must check to see if your tenancy agreement permits this and seek permission from your landlord. If you sublet without permission then you are breaking the terms of your tenancy agreement and in some cases would be committing a criminal offence.
Subletting requires the landlord’s permission
The Housing Act 1988 states that the tenants with assured or periodic tenancies shall not, without the consent of the landlord:
(a) assign the tenancy (in whole or in part); or
(b) sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy.
If an existing tenant lets all or part of their home to someone else, known as a subtenant, then they must have the written permission from the landlord to do so, even if this is implied in the tenancy agreement.
Subletting vs lodging
If you live in a flat or house share, and one of your roommates moves out and you find a new tenant who will pay rent to the landlord or letting agent, this is not subletting. In this case you and the new tenant have the same rights and refer to the same landlord.
If a family member or friend is staying with you on a temporary basis and they do not pay rent, this is not considered subletting either – merely having guests.
However, if you are renting a property and let someone move in with exclusive use of one or more rooms and they are paying rent to you, then this is classed as subletting. If you move out for part of your tenancy and someone else moves in and pays you rent, this is also sub-letting. In this case, you will be referred to as the subtenants immediate landlord and will have similar responsibilities as your landlord had before that.
Rights and responsibilities when subletting
Depending on how much of the property is sublet, there are a few different types of tenancies.
A subtenant who rents the entire property will likely use an Assured Shorthold tenancy. The subtenant will have the same rights as the original tenant, regarding the use of the property.
But if the original tenancy ends, or the tenant is evicted, it’s likely that the subtenant will get evicted too.
A subtenant who only rents part of the whole property, e.g. the upper floor of a two story house will rent under an excluded tenancy. Subtenants under an excluded tenancy has exclusive possession of that part of the property.
Subtenants have exclusive use of the accommodation that is let to them. For example, if you decide to sublet all or part of your rented home, you are giving up possession of all or part of it, and you could only enter it with their permission.
If they don’t have an exclusive possession of that part of the property, then they are likely not subtenants, but lodgers instead.
Subletting always needs to follow the rules of the original tenancy. For example, if the original tenant has a residential tenancy, they may not conduct business from that property. The same way, they cannot sublet the property as a business establishment or for business purposes.
Other aspects, like repairs, maintenance, insurance, etc. are regarded the same way as a normal tenancy.
Bear in mind that the original tenant holds responsibility before the property owner for damages done by the subtenant. They may redress the subtenant for the damages, but hold the ultimate responsibility.
A lodger, is someone who lives with you as part of your household sharing some of your accommodation, such as the bathroom or kitchen. They may have their ‘own’ room, but they live in your home with your permission and don’t have the right to exclude you from their room or any part of your home.
The main difference between a subtenant and a lodger is that a subtenant has exclusive use of their room. Lodgers also have reduced rights in the sense that their residential landlord can easily evict them and doesn’t need to provide a written notice.
How to take in a sublet or a lodger
Regardless of whether you’re a council tenant or a private tenant, you almost always need the landlord’s written permission to sublet the property.
Subletting is frequently referred to in the tenancy agreement. Your first step would be to read it again and look what it says about subletting the property. If there is no mention in the tenancy agreement, then you need to write to the landlord and obtain their written permission to sublet.
You should always write to your landlord and seek permission before subletting or taking in a lodger. If permission is granted then be sure to get this in writing and keep a copy for your records. When subletting the whole property your landlord is likely to want to perform credit checks on the subtenant to ensure their suitability and there may be a fee charged for this.
Keep in mind that failing to obtain a permission for subletting or acting against your landlord’s will is surely going to result in them evicting you and any subtenants. If you’re a council tenant, that might also be seen as a criminal offence.
Prior to subletting you should
- Check clauses in your tenancy agreement related to subletting
- Make a written request to your landlord or agent explaining your reasons for wishing to sublet
- Allow your landlord reasonable time to reply to your request
- If your landlord agrees there may be conditions that must be followed; if your landlord does not agree the reasons for this should be outlined
Subletting without permission
If you sublet all or part of your rented accommodation without obtaining permission from the landlord then you risk breaking the terms of your tenancy agreement and can face being evicted. The landlord can serve you a Section 8 – notice seeking possession and go directly to court.
Illegally subletting the property is a serious offence and the court will easily grant them a possession order. Council bailiffs may take the case with priority, as illegal subtenants can be viewed as trespassers.
Even though this can take a couple of months, beware that proceedings sometimes go faster than expected and you can end up homeless.
If you are a social housing tenant you may also be committing a criminal offence and could be prosecuted under criminal law.
Where to go for help
If you need more advice on sub-letting or if you are a subtenant yourself then the Shelter website has useful information.
The Citizens Advice Bureau website has further information regarding social housing, types of tenancy and penalties for offences.
This article is provided as a guide. Any information should be used for research purposes and not as the base for taking legal action. The Tenants' Voice does not provide legal advice and our content does not constitute a client-solicitor relationship.
We advise all tenants to act respectfully with their landlords and letting agents and seek a peaceful resolution to problems with their rented property. For more information, explore the articles in our Lodgers category.
If you experience problems with your tenancy deposit, have disrepair in your rented property or suspect that your landlord should have a licence to rent your property but does not have one then you can receive a free consultation by calling our advice service: Call Tenant Assist on 0333 344 3788.
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