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

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

10:01 AM, 23rd September 2024, About 3 weeks ago 30

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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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Paul Essex

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12:59 PM, 23rd September 2024, About 3 weeks ago

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.

John Frith

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17:13 PM, 23rd September 2024, About 3 weeks ago

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?

Disgrunteld Landlady

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8:16 AM, 24th September 2024, About 3 weeks ago

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.

Michael Crofts

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18:03 PM, 2nd October 2024, About A week ago

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.

Michael Crofts

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18:17 PM, 2nd October 2024, About A week ago

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

DPT

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14:28 PM, 3rd October 2024, About A week ago

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.

Michael Crofts

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16:20 PM, 3rd October 2024, About A week ago

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.

DPT

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12:42 PM, 4th October 2024, About A week ago

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.

John Frith

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13:25 PM, 4th October 2024, About A week ago

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.

Michael Crofts

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13:45 PM, 4th October 2024, About A week ago

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

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