How landlords can get possession of a sublet property
Subletting is fast becoming more common with the rise of sites like Airbnb, and in the midst of a housing crisis. If you’re a landlord of a property with an assured shorthold tenancy, you need to know your rights…
Your rights as a landlord
Most assured shorthold tenancy agreements contain a clause similar to this one:
“The Tenant shall not assign, sublet, part with or share possession of the whole or any part of the Property.”
But why is it there?
What if it’s breached?
And can a landlord get possession from a sub-tenant?
If there were no clause against subletting, a tenant would be lawfully entitled to grant a tenancy of the whole or of part of the property to a sub-tenant during the fixed term.
In practical terms, a tenant could allow any number of sub-tenants to live at the property without the landlord being able to vet or approve them.
There would potentially be a breach of the landlord’s insurance, or mortgage conditions.
If there were multiple sub-tenants there could be a breach of HMO licensing requirements.
Also, the tenant could be profiting from the sub-tenancies to the detriment of the landlord.
In legal terms, without a clause against subletting in the assured shorthold tenancy agreement, a residential sub-tenant could acquire security of tenure under Section 18 of the Housing Act 1988.
That is because where a sub-tenancy was lawfully granted (i.e. it was not in breach of any clause in the tenancy agreement), the sub-tenancy will continue in existence. Even if the landlord gets a possession order from the court against their main tenant.
Section 18 states that the sub-tenant will automatically become the direct tenant of the landlord. So long as they fulfil all of the standard criteria for being an assured tenant under Schedule 1 of the Housing Act 1988.
The landlord could unwittingly end up with a tenant they’ve not approved or referenced, and with whom they have no written tenancy agreement, and no certainty as to the terms of the tenancy.
This will make it difficult for the landlord to get possession of the property.
If the landlord tries to evict the sub-tenant in these circumstances, she risks a claim by the sub-tenant for illegal eviction.
How to get possession
If there is a clause against subletting, it’s easier for a landlord to get possession from both tenant and sub-tenant.
If the sub-tenancy is not lawfully granted (i.e. it’s in breach of the clause against subletting) then when the main tenancy ends, so does any sub-tenancy.
If there’s no express clause against subletting in the agreement – if the tenancy has become statutory periodic after the initial fixed term – Section 15 of the Housing Act 1988 implies a clause against subletting without the landlord’s consent.
If the tenant has permanently ceased to live in the property as their only or principal home because of the subletting, they’re no longer an Assured Tenant and have lost security of tenure under the Housing Act 1988 (Section 1).
This means the landlord only has to serve a Notice to Quit to terminate the tenancy, and can then get a possession order from the court on expiry of the notice, on the basis that the tenancy has terminated.
In practice, it might not be as simple as that.
In past cases, the courts have been fairly generous to tenants when assessing whether a tenant has stopped living at the property as their only or main home.
This appears to be quite a difficult thing for a landlord to prove.
Even if a tenant has not lived at the property for some time, if they can persuade the court they intend to return, the court may not agree that they’ve lost security of tenure.
For that reason, a more cautious approach would be to treat the tenant as still having security of tenure under the Housing Act 1988, and serve a Section 21 or Section 8 Notice, then issue possession proceedings.
Being cautious, it’s also wise to serve copies of the possession claim at the property addressed to “the occupiers”.
This is so the court can be satisfied that any occupiers who are affected have had the opportunity to make representations to the court before the possession order is made.
That means less chance of occupying sub-tenants making last-minute applications to the court to set-aside the warrant of possession when the process reaches that stage.
The clause against subletting
In 2015, the government said it planned to make it easier for tenants to sublet a room.
This plan was to legislate against the use of clauses in private fixed-term tenancy agreements that expressly rule out subletting or otherwise sharing space on a short-term basis.
However, no date has been set for consultation.
In the meantime, when considering the wording of the clause against subletting, be aware that the CMA guidance on Unfair Terms in Tenancy Agreements states that in a fixed-term tenancy an absolute ban on subletting may be considered unfair.
Expressly allowing the tenant to assign or sublet with consent that is not to be unreasonably withheld is considered a fairer balance.
You can then make a decision on the suitability of any sub-tenant proposed by the tenant, require that there is a written tenancy agreement put in place, and get approval from your insurer and mortgage lender before giving consent.
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