Non-Permitted occupier in second bedroom?

Reply to the comment left by LaLo at 05/05/2022 - 14:05The 3rd person is not renting from the landlord therefore there is no contract or tenancy between the landlord and this 3rd person

Reply to the comment left by Helen at 05/05/2022 - 14:39
If the original named tenants moev out then the landlord must not collect rent from anyone who remains at the property.

Landlords must always be careful to deal with the named tenants only; this includes adressing rent demands, correspondence and rent colection. It is easy to drift out of formality (e.g. dealing with a party for the sake of simplicity) but must be avoided.

If the landlord maintains a relationship with the named tenants they remain fully responsible and are the ones who would need to provide vacant possession when required.

Reply to the comment left by Graham Bowcock at 05/05/2022 - 15:24
But, how do you get the 'trespasser' out?

Reply to the comment left by Judith Wordsworth at 05/05/2022 - 15:14
Personally I feel there is significant ambiguity around the responsibility split for landlords, as opposed to tenants with lodgers, and I always err on the side of caution and assume I will be held liable where there is any doubt. I believe the professional landlord has the highest level of expectation placed on them and there is no excuse accepted by the court that you as landlord just didn't know there was someone else living in the property as you are EXPECTED to know (regardless if that is fair or not). For example you will see that the definition of an HMO refers to 'occupiers' and not tenants, therefore you can be quite sure that the professional landlord will be carrying the bag for any lodgers or even non-paying lodgers that push a property into an HMO classification where a license is required and not obtained, why would I assume any different for R2R checks? Better safe than sorry I always say.

Don't lose sight of the fact that the tenancy agreement is a legal contract that determines the rights and responsibilities between you and the tenant. Your tenancy agreement should have a clause explicitly fhaf explicitly prevents sub-letting.
By starting to sub-let early on suggests they know exactly what they're doing - they may well have played this game before.
The agent advice is wrong. If they are managing agents they should follow it through, not gain from extra management fees. If you charge a higher price then a court will conclude you agreed to vary the tenancy without the subtenant having responsibilities. What if this subtenant leaves and your tenants move someone else in?
The rent was for 2 adults and the extra room if they had a child. It was for a certain level of wear & tear and repairs by 2 adults who had accepted the legal responsibilities. The 3rd adult has not - so will be more costly.
Your tenants are probably responsible for the R2R check and all other legal obligations. They can just give their lodger notice to leave. That's much easier than the eviction process. I'd push back hard.

Reply to the comment left by Graham Bowcock at 05/05/2022 - 12:37
It would make a HMO. 2 or more house hold more than twoo people.

Reply to the comment left by Kate Mellor at 05/05/2022 - 13:45
What if the third person refuses to provide details for R2R check?

What if they provide details but they don't have the right to rent? Ie what is the process for removing?

Reply to the comment left by Darren Peters at 05/05/2022 - 19:49
When it's happened with my tenants it has always been an instance of a new partner moving in and I've just explained that I need the information to fulfil my legal obligations and there hasn't been an issue with non-compliance. Once they know you know, they don't want to risk rocking the boat. I actually prefer to let new partners move in as 'permitted occupiers' because it means that if the relationship falters there's no question of who leaves the property and the original tenant keeps control of their home. It's much easier for them and for you.
This is not the same in the case given here, but if you approach your tenant in a non-aggressive way just stating that you need to legally check the details of any adult living in the property the tenant themselves should provide this as it's their tenancy they're risking. If they refuse, I suspect you will have more problems than this from that tenant and you should give them S21 as soon as you are able before the powers that be remove that option. It's harder when you are dealing with an agent though as you don't have any control over their approach and whether they alienate your tenants.
If your property is in a non-selective licensing area and you have the details of the lodger, I'd be tempted to just let them get on with it. They retain responsibility for the full rent, and any property damage.
The reality is that tenants do this stuff if it suits them and they can either do it on your terms or behind your back. If you decide it's a 'No' from you, then you have the issue of evicting and starting again if they don't remove the lodger, which is expensive.
Cost of living and especially renting is going through the roof and the reality is people need to find more creative ways of making ends meet and I personally am against the whole restrictions on small HMOs because that's how young people or single people managed in my day and it worked well. Now it's impossible for single people unless they live in a structured HMO, paying through the nose for the extra external management involved with big HMOs and at the whim of someone else as to who you've got to share a home with. YUCK. (Just my personal soap-box moment sorry).
As to part 2 of your question, the person is already there, so the problem already exists. I've never looked into this because I've never had anyone come up without the right to rent and our checks are done before the person moves in. You'll need to look into that specifically. Gov.UK website does state lodgers need right to rent, but as a lodger is a much less formal situation than that of a tenant it would seem logical that someone should just need a valid visa for the period they are in the country. That in fact may give them a time limited right to rent? I don't have time to look that up just now. If you have seen their visa you know when they are obliged to leave and so does your tenant, and, let's face it, they are unlikely to have checked that if you hadn't asked.

The circumstances you outline indicate that unlawful sub-letting is taking place in breach of the tenancy agreement. You can seek to regularise the position by the additional "tenant" having to make application and go through the usual application process with evidence of residency, identity, Home Office Right to Rent checks, former landlord reference, financial referencing and so on. But when this last happened in one of my properties, the new occupant turned out to be wholly unsuitable and would never have obtained a tenancy in his own right, had he legitimately applied. Also be aware that there is an implication of further fraud here, if the new occupant is paying your tenants for a sub-let room to reduce their rental liability.
You might care to consider whether you should serve Notice on your existing tenants, who should be taking steps any way to get rid of THEIR sub-tenant. The form of notice depends upon the precise circumstances including how much longer the fixed period of the tenancy has to run. Section 21 is usually easiest as it is no fault and there is no burden of proof. Also watch out for any breach of the HMO Regs.

Reply to the comment left by Peter Fredericks at 07/05/2022 - 12:10
Will be difficult to prove 'sub-letting' if they claim he's just a friend staying rent-free. If he's a 'lodger', it is permitted without the landlord's permission.