Is a Tenant allowed to sublet in a Tenancy?
Subletting is the term given to the practise whereby tenants under an Assured Shorthold Tenancy rent part of the property to other tenants under a subletting agreement.
There are practical reasons why it happens regularly. The main ones being there is a spare room in a rented property and the other tenants who are jointly liable to pay rent wish to make up the shortfall by subletting to a new tenant.
The other reason is that an increasingly a number of the 4 million tenants in the UK are self-employed and work away from home for weeks or even months at a time. In this situation they may be inclined to cover their costs by subletting to a tenant. This means the existing tenant (who has subletted), becomes the new tenant’s landlord.
Is a Tenant allowed to sublet in a Tenancy?
Maybe. The first thing to do is check your Tenancy Agreement as there is usually a term on subletting which requires tenants to seek permission of their landlord before doing so. It also often states that a landlord will not unreasonably without such consent. What is unreasonable? Guidance below.
The Government’s model agreement for AST’s provides as follows:
7 ASSIGNMENT AND SUBLETTING Assignment 7.1 The Tenant must not assign (i.e. transfer to another person) the tenancy, either in whole or in part without the consent of the Landlord in writing. Such consent must not be unreasonably withheld. Subletting of whole Property 7.2 The Tenant must not sublet the whole of the Property for the entire duration of the Tenancy. 7.3 The Tenant must not sublet the whole of the Property for any period which is less than the entire duration of the Tenancy without the consent of the Landlord in writing. Such consent must not be unreasonably withheld. Subletting of part of the Property 7.4 The Tenant can request to sublet part of the Property for either the whole or part of the duration of the Tenancy. The Tenant must not sublet any part of the Property without the consent of the Landlord in writing. Such consent must not be unreasonably withheld. (Provided under Crown Copyright).
The Government helpfully provides guidance notes amplifying on this:
GUIDANCE NOTE Clause 7 prohibits the subletting of the whole of the property for the entire duration of the tenancy. If the tenant does sublet the whole property for the duration of their tenancy or for a significant period of time such that the property is no longer the tenant’s main residence, they may lose their status as an assured shorthold tenant and the statutory protections that this provides. Where the tenant wishes to sublet the whole of the property for shorter periods of time or wishes to sublet part of the property, the tenant must only do so with the landlord’s written consent , which must not be unreasonably withheld. This means the landlord cannot exercise a blanket ban on subletting and should not turn a request down without good reason.
Good reasons could include:
- · If the property is leasehold and the freeholder prohibits subletting.
· If the property's mortgage or insurance terms prohibit subletting.
· If the tenant refuses to provide references on the proposed sub-tenant.
- · If the proposed subletting would cause the property to become overcrowded or would breach a licence condition where the property is licensed.
· If the proposed subletting would cause the property to fall within the definition of a licensable House in Multiple Occupation due to the number of unrelated occupants.
A request to sublet would include letting the property out on a short-term holiday let basis through sites such as Air BnB, or on a longer fixed term flat share basis through sites such as SpareRoom.co.uk. If consent to sublet is given on the condition that an additional deposit is paid by the tenant, then the landlord must also protect that additional deposit in an authorised tenancy deposit scheme. The landlord must respond to requests to sublet the property within 28 working days and must state reasons if not granting consent.
The above guidance is very helpful and makes clear that as a landlord you cannot without consent unless you have a compelling reason.
What is the difference between a sublet and a lodger?
They look different but the key legal distinction is to do with exclusive possession. A lodger may stay in their own room and use the shared facilities of a rented property but they do not have the right to exclude a landlord from their room. A subtenant on the other hand has an agreement in place and had the full rights under an AST Agreement and right to their own room which others may not enter without proper permissions.
Can a Tenant take in a Lodger?
Yes, read more HERE
You can get a Tenancy Agreement for a sublet here
You can get a Lodgers agreement here
What happens if a tenant sublets without a landlord’s permission?
This would constitute a breach of Tenancy Agreement and depending on your landlord you could be evicted through one of the routes below:
- Section 21 Notice of Eviction – Currently a landlord does not need to prove fault to serve a Section 21 Notice giving a tenant two months’ notice to vacate the property. I say currently because this is being debated at this time and the government wants to make it harder for landlords to end a tenancy without showing fault/breach of agreement. You can read more about these upcoming Section 21 changes HERE or
- Section 8 Notice to Quit – this is the process through which a landlord can evict tenants who have broken the tenancy agreement. This involves a landlord serving a Section 8 Notice (one can be found here), on the tenant notice is given. If the tenant does not leave possession proceedings begin to obtain a Judgment Order.
Subletting in a tenancy and the risk of accidentally creating an unlicensed HMO
Landlords may agree to tenants subletting as it can seem unreasonable not to but a word of caution is necessary. Consenting to subletting may cause overcrowding and furthermore give the activity the status of an HMO (Houses of Multiple Occupation), in that where three or more tenants who are unrelated live together there are strict rules that need to be followed. Failure to comply with HMO laws could even be a criminal offense. For more information on HMO’s please read the HMO Government guidance here: