An existing tenant who rents out all or parts of their home to someone else is subletting. They then become the subtenant and pay rent to the original tenant rather than the landlord. Tenants may do this if they become unemployed, have an income reduction or if they (or another tenant) need to move out before the end of the tenancy.
Is Subletting Illegal?
Many believe subletting is illegal.
However, it is only illegal if the tenant doesn’t obtain the landlord’s written permission to let out the property. Many landlords put a clause in the tenancy agreement that states that the property may not be sublet by the tenant. This is often done because the landlord won’t have a say on who can be in the property and therefore cannot guarantee that this person will look after it.
If a tenant does ask for permission, it is up to the landlord to decide. The sub-tenant won’t be the landlord’s tenant so it can get messy and it’s best to draft up a new tenancy agreement for the potential sub-letter.
If a tenant sublets the property without permission and the landlord has a tenancy agreement clause stating not to sublet the property, then the tenant is in clear breach of the agreement and has broken the law.
The best thing to do is to talk to (not confront!) their original tenant to try and find a solution. If this fails, you should contact the sub-tenants and ask them to vacate the property (or create a tenancy agreement for them). If this also fails, the eviction process can begin via a Section 8 notice. Unfortunately, landlords in this position cannot evict the sub-tenant (only the original tenant can),. Therefore, to get rid of the subtenant, landlords must evict the current tenant.
The best way to avoid sub-letting in a property is to prevent it from happening in the first place. This includes:
- Putting a clause in the tenancy agreement that states that sub-letting cannot take place.
- Carrying out regular inspections of the property, which will act as a deterrent.
- Having a good relationship with the neighbours who may report seeing another person move in.
- Maintaining a good, mutually respectful relationship with the tenants. This is so they can notify their landlord if there is any financial worries and work to resolve them.
- Conducting thorough tenant referencing checks with past landlords to ensure they have not sublet before.
Once the original tenant has left, any subletting tenants will also have to leave. This means landlords can readvertise the property, get new tenants in, and implement preventative steps to ensure it doesn’t reoccur.