Subletting – My Assured Shorthold Tenant has sub-let my residential property to another tenant. How do I deal with this?
We have been asked about this several times recently – it seems there’s a few unscrupulous individuals going around taking on tenancies and then immediately sub-letting them. In one case reported to us a tenant had ten sublets.
Your letting agreement should have a clause which prohibits sub-letting, most AST agreements do, and therefore your tenant is in breach of the tenancy agreement – he is in breach of contract under common law.
As your tenant is on an Assured Shorthold Tenancy under the Housing Act 1988, as amended by the Housing Acts 1996 and 2004, he would normally be protected under the statutory rules.
However, as this is no longer your tenant’s main residence, this tenancy is not an AST. It is in fact what is known as a Common Law Tenancy, which is purely contractual in nature.
Your tenant no longer has the protection of the statutory Housing Act rules, which would normally give the tenant a minimum tenancy term of 6 months, requiring 2 months’ notice to vacate.
Under common law, as your tenant is in breach of contract, you can end the tenancy.
You must end the tenancy legally before either agreeing a new tenancy with the sub-tenant or proceeding to evict the sub-tenant.
As the six months’ minimum term no longer applies, you can take immediate court action against your tenant for breach of contract and for eviction of the sub-tenant at the same time if you require this.
Don’t be tempted to accept rent directly from the sub-tenant whilst the existing tenancy is legally in-force. This would complicate things legally.
Again, as this is no longer an AST, as your tenant’s main residence, the local authority may bill you direct as landlord for Council Tax. If they do this you will be liable to pay.
However, you should in turn be able to claim this from your tenant, providing the tenancy agreement says he is liable for this, and always of course providing you are able to collect it.
At LandlordZONE – www.landlordzone.co.uk/forums – we answer between 50 and 100 landlord / tenant questions every single day. You should always seek professional advice before taking action or not.
©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England and Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.