Tenant is sub-letting without permission – what can I do?

by Readers Question

13:55 PM, 7th December 2016
About 2 years ago

Tenant is sub-letting without permission – what can I do?

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Tenant is sub-letting without permission – what can I do?

I have just discovered that my tenants, who are the only ones named on the contract, are sub-letting the 2nd bedroom in the property without my permission. This sub-let took place from the commencement of their tenancy, nearly 6 months ago.contract

It clearly states within their contract no sub-letting is to take place without my written permission. The tenants have never asked, nor indicated, about any sub-let. It was one of the neighbours’ who notified me (I currently reside overseas).

Given the above, does this place the tenants in a complete state of breach of contract? What am I able to do about this?

Many thanks

Marinus



Comments

Neil Patterson

13:59 PM, 7th December 2016
About 2 years ago

Hi Marinus,

Please see these relevant article links and the notes below

>> https://www.property118.com/tenant-subletting-scams-landlords-guide/85477/

>> https://www.property118.com/subletting-behind-landlords-backs/82441/

Is tenant subletting a criminal offence?

In some circumstances it’s acceptable to sublet a property, but tenants need their landlord’s permission. Landlords can take legal action against tenants if they sublet their property unlawfully. Unlawful subletting includes if a tenant:

sublets all or part of the property without written permission
is not permitted to sublet all or part of the property but does so anyway

In these circumstances, a tenant will most likely have broken a term in their tenancy agreement. On that basis, landlords can take action to evict the tenant.

Certain social housing tenants may also commit a criminal offence if they unlawfully sublet their home and could be prosecuted under criminal law.

Subletting a property could also be a breach of the terms and conditions of a landlord’s mortgage and insurance conditions. It may also turn the property into a licensable HMO (House in Multiple Occupation).

An HMO is a property rented out by at least three people who are not from one ‘household’ (e.g. a family) but share facilities like the bathroom and kitchen. If a property is rented to five or more people, is at least three stories high, and tenants do share such facilities, the landlord must have an HMO license. HMO landlords have additional responsibilities under the fire safety regulations and penalties for renting out an unlicensed HMO are up to £20,000.

Lynette Morris

7:59 AM, 8th December 2016
About 2 years ago

I had a tenant who did this and was pocketing £800 a month over my head. The extra bodies greatly affected the condition/decor etc of the property and its contents. He left when rumbled as did the illegal tenants whom I gather he threatened! I know where he is. Can I take him to my small claims court for compensation?

John Morris

15:05 PM, 8th December 2016
About 2 years ago

Reply to the comment left by "Neil Patterson" at "07/12/2016 - 13:59":

I live in a house split into 2 flats i bought the groundfloor flat and i bought the freehold from a building society. The top flat was leased to a couple who split up and the lady moved to ethiopia and arranged for a proprty management to sublet her flat. I have recently bought a copy of the original lease from 1971 and was suprised to find that she should not be subletting without my permisiion and the should be kept as a private dwelling. I am severely disabled and have had to live with people arguing, shouting breaking things and fighting all with no soundproofing in the flat.Now i know my rights what should i do to stop the sub letting so that i can live in peace for the time i have left

Kate Mellor

17:08 PM, 8th December 2016
About 2 years ago

Marinus yes, your tenant is in breach of one of the conditions of their AST (I presume your AST prohibits subletting without your permission), I would add however that I have read in the Landlord Law Blog that you would need to have a valid reason for refusing your permission, otherwise it would be considered an unfair term. A valid reason may be for instance that your mortgage lender prohibits subletting.

I would say to you however, that as your tenant is also living in the property, the person subletting is actually a lodger and does not have the same rights as a tenant. Once your tenant's tenancy has legally ended the lodger has no rights to continue to occupy the property.

Your options here, if you decide you wish to remove this lodger, are to issue the tenant with a section 21 notice (assuming you have complied with all of the relevant requirements of the tenancy and are therefore entitled to issue one). This is a no-fault accelerated possession order which allows you to regain possession without needing to give a reason. You could tell your tenants that if the lodger has left by the time the two months has elapsed you will not pursue the eviction. If however they have not, you will get a court order and instruct bailiffs to attend to remove them if they have not voluntarily left the property.

You could alternatively issue a Section 8 notice, but breach of terms is at the discretion of the judge, so I would definitely not go down that road.

You should consider whether this is really a problem or not before spending good money to remedy it. What are your concerns regarding the lodger? If it is a vacant bedroom being occupied by an individual is there really likely to be excessive wear and tear caused by this? Has the lodger been causing a nuisance which is upsetting the neighbours?

On the positive side, the income from the bedroom helps your tenants to pay your rent more easily which means you are potentially less likely to encounter arrears.

There are really no quick fixes, unless you simply remind the tenants of the terms of their agreement and they agree to comply, you will have to follow the legal course of action and all the time and money that involves, so make sure you think it's really worth it.

Kate Mellor

17:17 PM, 8th December 2016
About 2 years ago

Reply to the comment left by "John Morris" at "08/12/2016 - 15:05":

Hi John, have you looked at the information available on the Leasehold Advisory Service website https://www.lease-advice.org/ ?

This page may be a good starting point: https://www.lease-advice.org/faq/i-am-a-landlord-what-can-i-do-if-a-leaseholder-breaches-the-terms-of-their-lease/

Have you tried contacting the agent who is managing the tenancy and sending them a copy of their clients lease and explaining that they are breaching the terms? If she is not in the country and tenants are insitu I suspect your chances of getting her to comply are between slim & none. If you're serious then you'll have to look at the tribunal process.

Kate Mellor

17:21 PM, 8th December 2016
About 2 years ago

Reply to the comment left by "Lynette Morris" at "08/12/2016 - 07:59":

Hi Lynette, I'm assuming his deposit didn't cover the repairs required when he left? You could claim for your losses in terms of any damage, or unpaid rent, but not the money which he earned by taking in lodgers. I think that would be termed 'Betterment', or at the very least some type of punitive fine.

John Morris

12:26 PM, 9th December 2016
About 2 years ago

Reply to the comment left by "Kate Mellor" at "08/12/2016 - 17:08":

Thank you Katie i am a bit confused when you say lodger in your helpful response so i thought i should clarify a few points. I have no connection to anybody other than the leasee who has moved to Ethiopia and she is my tenant the propety anagment company have been told many times that this tenent if breaching another part of the lease which prevents my tenent (now abroad) from disturbing me or my neighbours. The managment peopl have to evict her if she will not leave and they have given her a letter saying she must leave. My position is that rowdy people are living above me who the property companyshould do more on behalf of my tenent who hired them to manage. I am 69 and have 6 incurable diseases including Myasthenia & Parkinsons My reason for not providing permission is that it is affecting my health due to the stress and also fear when the fighing spills past my door and into the street. Tanks in advance

Kate Mellor

14:48 PM, 9th December 2016
About 2 years ago

Reply to the comment left by "John Morris" at "09/12/2016 - 12:26":

Hi John,

The advice you are referring to was not a reply to your question, but was a response to the original question posted by Marius at the head of the page.

If you scroll down further you will see a response from me to your question. Look for the line at the top of the reply which says: -

Reply to the comment left by “John Morris” at “08/12/2016 – 15:05“:

It's the fifth response down and directly below the one you did read which was not replying to your question. 😉

John Morris

20:06 PM, 9th December 2016
About 2 years ago

Thank you for trying to help but i will get aq solicitor to deal with my problem as a breach of lease after all i bought my flat with the freehold and a legal lease. . please understand that i have Parkinsons disease and replying to offers of help it difficult with little gremlins eating your brain but thank you for helping me but i will take care of my problems in my own way. I have had Parkinsons for 10 years and i still look like a unicorn after eating ice cream cones but i must take my condition seriously.......one day so please no more posts..Thanks again


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