Unauthorised subletting: What to know when letting a property

Subletting is when the tenant the property is let to then lets the property to another individual. The sublet will be unauthorised if the landlord’s consent is not obtained.

Unauthorised subletting could occur when:

1. The tenant is charging the individual rent.
2. The tenant agrees to not enter the individual’s space.
3. The landlord has not given permission for this to occur.

Unauthorised subletting has become more prevalent with the emergence of property rental websites such as Airbnb. In fact, some landlords only find out that their property is being sublet when they stumble across their own property on an Airbnb advert.

What steps to take if the property is being sublet?

If the property in question is being sublet with authorisation, the landlord can take legal action against the tenant subletting the property and get both them and the subtenant evicted.

In the first instance, it is important to communicate with the tenant and the occupier. Sometimes the occupier is unaware that the property is not owed by the tenant, and they could work with the landlord to reach a resolution.

If a resolution cannot be reached, then a legal process may need to be followed.

The steps to take:

1. Gather evidence of the subletting and take legal advice to serve notice. A Section 8 Notice, citing ground 12 for breach of contract could be served; this is because the tenant has breached any of the terms listed in the tenancy agreement.

However, this is a discretionary ground, meaning that a judge will be exercising their discretion in awarding possession or not. As such, it is beneficial to have as much evidence as possible to include with the Section 8 Notice. For example, include the webpage listings for renting if found online. A top tip is to print evidence of the webpage listing as soon as it is spotted, as the advert may be taken down and the evidence lost.

2. Initiate court proceedings to apply for a possession order. This will require a hearing and so the more evidence that can be provided, the better. The judge will then exercise their discretion in awarding a possession order.

3. If a possession order is successfully obtained, a possession date will be given. If the tenant and subtenant stay beyond this date, bailiffs can then be instructed. Bailiffs will then be able to attend the property and physically evict whoever is in the property and change the locks.

What steps to take to prevent subletting from occurring?

• Ensure there is a clear clause in the tenancy agreement that states subletting is not allowed without the landlord’s prior consent.

• Communicate with the tenant and the occupier as soon as the subletting is discovered.

• Carry out regular inspections at the property – this could show signs of additional occupiers in the property.

• Conduct thorough referencing checks – know the tenant as much as possible.

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