The RLA recently ran an article on their website relating to subletting by tenants after one of their members rang their advice team.  As this is relevant to all landlords, the article is detailed below:

One of the worst things that can happen to a landlord is finding out that their tenants have sublet a property without their permission. This can open up a can of worms for landlords that invariably causes all sorts of problems in moving all the occupiers out of the property.

The problem

A landlord called our advice team this week with a complicated issue on subletting. The first time the landlord had learnt of the tenant subletting was when he visited the property and found six adults he had never met living in the two bedroom house. The landlord was surprised at this, because he had rented the property to a woman and her four-year-old child, neither of whom seemed to have ever lived there.

It later transpired the tenant had decided to become a ‘rent to rent’ landlord. This sees someone rent a property from a homeowner (often under false pretences) after which this ‘tenant’ rents it on to someone else, to make a large profit. What had happened in this case was that the tenant had created a HMO, though not a licensable one, as they had moved in six unrelated people on ‘licence’ agreements, and without protecting the deposit.

The landlord was sure she had moved in originally, as she was present and the property had had no alterations made at the time the landlord performed the initial inspection. We checked with the landlord whether or not they had granted a tenancy agreement and they confirmed that they had given the tenant one of our tenancy agreements back in 2015.

Tenancy agreement prohibited subletting

As this tenancy contained a clause strictly prohibiting subletting, we also tried to establish whether or not the landlord had taken any payments of rent from these sub tenants, or offered them any indication that they would become the landlord’s new tenants. The landlord confirmed this was not the case.

The reason we asked these questions is that where a tenancy is ended, and there are unauthorised sub-letters, the sub-tenancies will also be ended by serving notice against the head tenant.  In this case getting a possession order and a bailiff for the original tenant would remove the tenants below.  Had the landlord granted permission this would be very different.

The landlord was happy to hear this as he had no idea who the sub-tenants were or even their names for the service of notice.  He was concerned that he may end up trapped with these tenants forever.

What notice should the landlord serve?

The problem then was which notice should be served?  The original tenant had not served any kind of notice to end the assured shorthold tenancy; she hadn’t even spoken to the landlord in over a year. However, the property was clearly not her main home so it was also potentially not an assured shorthold tenancy.

As the notices required were different depending on the type of tenancy, this created quite a conundrum. We advised the landlord to contact their tenant and ask why all of these people had seemingly moved into the property.

This may trigger the tenant taking action to remove them as she knew she had been caught. As it happened, the tenant was sufficiently worried by the landlord contacting them that they removed the tenants within a very short space of time. Most likely as a result of the publicity around convictions like the one reported in the Hertfordshire Mercury in February this year.  After that had been done the tenant surrendered their tenancy shortly afterwards.

Had this not occurred, the landlord would have been stuck with a very difficult possession process and the best advice would be to have a solicitor represent them in ending their tenancy to ensure they could gain possession.

Rupinder Aujla, LAT Manager at RLA said: “We’re very glad this case worked out for our landlord but this is an exceptional case.  Sub-letters can be very difficult and expensive for landlords and it’s essential that landlords take steps avoid granting permission for the sub-letters to stay.’

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