Residential landlord and tenant specialist, Mike Hansom, considers how private landlords should approach the problem of unlawful subletting. To discuss any aspect of landlord and tenant law or procedure, please email Mike or call him on 01225 462871.
While not common, private residential landlords do sometimes discover that their tenant has left the property, leaving somebody else in occupation. Clearly, this is a situation that needs to be addressed.
As a landlord, the first thing to remember is to remain calm. There are instances of landlords becoming verbally or even physically abusive towards unlawful occupiers. As much as anything else, this will certainly not endear you to the courts, or the police! Just remember, the situation may have arisen from a misunderstanding by the tenant over what is allowed. After all, in many of these scenarios, the rent continues to be paid.
The first step
The first step is to check the terms of the tenancy agreement. Most will limit your tenant’s ability to assign or sublet by requiring your consent to do so. If you did not consent then the occupation is unlawful, unless the occupier is the tenant’s spouse or civil partner, in which case they may be deemed to be in occupation on the tenant’s behalf.
If the occupation is unlawful, what are your options?
On the assumption that you cannot (or have no desire to) remedy the situation with your tenant, you have two options:
- End the tenancy and take back possession. Depending on the circumstances you will need to serve a Section 8 notice and/or a Section 21 notice. If the occupier does not leave the property by the date specified in the notice, you will have to commence possession proceedings.
- Accept the current occupier as a tenant. This may sound a little counter-intuitive, but after assessing the situation, you may decide that the simplest (and possibly least expensive) option is to formalise the arrangement with the occupier. This can be achieved either by agreeing that the tenant has assigned or sublet, or by entering into a new tenancy agreement with the occupier.
Please note that care needs to be exercised if you are considering accepting the occupier as a tenant. First, you will need to consider returning the deposit to the previous tenant. Second, residential landlord and tenant law requires a number of actions to be taken on granting a tenancy, some of which must be taken before a tenant commences occupation. Accordingly, if you are considering accepting the current occupier as a tenant, before taking any steps, we strongly advise you to take legal advice.