Lead tenant Subletting turns out to be a letting agent!

by Readers Question

7:45 AM, 10th April 2017
About 2 years ago

Lead tenant Subletting turns out to be a letting agent!

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Lead tenant Subletting turns out to be a letting agent!

I have a tenancy agreement with an Individual who turns out to be a letting agent. He has been subletting the property out for a while, his actually not living there and there is no deposit involved hence no deposit protection required.

His tenancy agreement is now a periodic one as his tenancy ended in August 2016. I also been receiving the rent late for the past couple of months.

I wanted to know how to best evict the current tenants whom are not on the tenancy agreement. The council doesn’t allow HMO licence without the correct licence and the council don’t issue HMO licences anymore.

Many thanks

Kais



Comments

Neil Patterson

7:49 AM, 10th April 2017
About 2 years ago

Hi Kais,

Unfortunately this is far more common than you would think if you do an article search on here for "sublet" and please see >> https://www.property118.com/?s=sublet&submit=

Also our tenant eviction page under our legal tab >> https://www.property118.com/evicting-tenants/

Kate Mellor

13:06 PM, 11th April 2017
About 2 years ago

Hi Kais,

You will need to issue a section 21 notice to the tenant who is on the lease at the property, ensure you follow all the correct procedures and obtain proof of service. If you have never evicted a tenant before you would be wise to get assistance with this. If you are a member of a landlord body such as the RLA (which costs around £80 for an annual subscription) you will have access to their telephone advice line to ensure you know how to proceed correctly.

The sub-tenants do not have a contract with you, their contract is with your tenant. So you will need to evict your tenant. It is likely that you will need to obtain a court order once the notice period has ended and then instruct bailiffs to enforce it.

Two issues which you need to clarify/consider are:

1) have you been accepting rent directly from the sub-tenants, or has it come from your tenant? If you have been accepting rent from the sub-tenants this could have created a tenancy between you.

2) has the current tenancy become an Assured Tenancy rather than an Assured Shorthold Tenancy? As your tenant is not living in the property as his primary residence he cannot have an AST. This may well have an impact on the eviction requirements.

Personally I would want the advice of a professional Landlord body in these circumstances as you will need to spend £325 for a possession claim online, so if you get it wrong you'll have to reissue, wait for the notice to expire and then reapply paying the fees again, so mistakes can be costly.

Gary Dully

18:36 PM, 11th April 2017
About 2 years ago

I would issue both a section 21 notice and a section 8 notice on grounds 10,11, 12 and 17

Google the grounds and see if they fit for a particular time of the month.

If you have not received rent directly from the sub tenants they are his problem.

In addition the tenant can be sued by you for damages for losses if they are making a profit.

See
http://england.shelter.org.uk/get_advice/sharing_and_subletting/subtenants

Kais Malique

19:14 PM, 11th April 2017
About 2 years ago

I have always received rent from the Tenant and never from the Sub-Tenant. The Tenant was issued with an AST Tenancy. If the Tenant leaves in own will without issuing section 21 how would I remove the sub-tenants?

Kate Mellor

18:16 PM, 12th April 2017
About 2 years ago

You'll have to follow the normal eviction procedure as your tenant may not be living there, but he hasn't given you vacant possession. You will need to evict YOUR tenant, serving the notices at the tenanted address, unless he's updated you with a different address to serve notices to, which I presume he won't have done.

Your tenant will then need to give notice to his sub-tenants, however if that isn't done it is irrelevant to you, as the current sub-tenants don't have a right to stay once your tenant has been evicted. The bailiffs will remove everybody at the property regardless of who they are when they attend.

Kais Malique

20:27 PM, 12th April 2017
About 2 years ago

Reply to the comment left by "Kate Mellor" at "12/04/2017 - 18:16":

The main tenant has decided he will return the house back and his given notice to the sub tenants. What can be done if the sub tenants refuse to leave.

Kais Malique

20:27 PM, 12th April 2017
About 2 years ago

The main tenant has decided he will return the house back and his given notice to the sub tenants. What can be done if the sub tenants refuse to leave.

Michael Barnes

0:12 AM, 13th April 2017
About 2 years ago

If the tenant is not living there, then is it still an AST?

And if not, then is a S21, or indeed a S8, notice appropriate?

Kate Mellor

17:14 PM, 13th April 2017
About 2 years ago

I've done a bit of research as I was sure that if the tenant wasn't living at the property then he couldn't have an AST regardless of his having signed one at the outset. As I suspected he doesn't meet the necessary requirements, one of which is that he is using the property as his 'only or principal home'.

From what I can discover the tenancy would be considered only a 'contractual' or 'common law' tenancy which does not come under the Housing Act 1988 & therefore as Michael suggested would not be covered by a Section 21 or Section 8 notice. I'm pretty sure I had been told by a trainer that it would be an Assured Tenancy, but if I was this doesn't appear to be correct (although I may well have simply misremembered what was said).

It would seem that you don't need to use grounds for eviction, but can apply for a court order under breach of contract. I would still certainly suggest that you seek expert advice on this if you do need to take it further as it is something of an unknown quantity, unless someone on here has specific experience of this.

The following link gives some basic information about this type of tenancy which you may find a useful starting point. http://www.landlordzone.co.uk/content/common-law-tenancies

It may be that you can proceed as though it were an AST, issue a Section 21 notice, follow it up with a PCOL (possession claim online), then apply to the court for a warrant so that bailiffs can attend and remove any remaining parties, but you will need to confirm that this is a valid approach however.

Yasin Leysan

10:26 AM, 16th April 2017
About 2 years ago

Hello Dear,

You evict through your tenant, the one you give the agreement or make a take over from him and inform the tenant who resides the property that your the landlord and you need the rent paid direct to you and also inform them you need the house back, but if they don't go freely then you evict them by using normal procedure

I hope this helps


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