How subletting works in England

Subletting is a very complex area for tenants and landlords to navigate. Whilst it can help a tenant who needs to move out for legitimate reasons, it also exposes landlords to a lot of risk.

This risk has increased since the Renters’ Rights Act came into force, as it gives the First-tier Tribunal the power to make a superior landlord liable for a rent repayment order for an offence they commit, reversing the finding of the 2023 Supreme Court case, Rakusen v Jepsen.

In this post, I draw on my experience as a lawyer and landlord to explain the different types of subletting, both authorised and unauthorised.

I cover the full tenancy cycle, including subletting, in my bestselling book, The Good Landlord Handbook. If you have questions, you can ask me at twice-monthly livestreams in my membership, The Independent Landlord Hub. I’m unable to answer questions in the comments or by email.

What does subletting mean?

A tenant sublets some or all of a property they rent from a landlord (called the superior landlord or the head landlord) to another person (the subtenant).

The tenant (called a mesne tenant, which means intermediate) becomes the landlord of the subtenant, and is also referred to as an intermediate landlord. The mesne tenant still remains responsible for complying with the terms of their tenancy agreement with the superior landlord, including paying the rent and behaving in a tenant-like manner.

Importantly, if the superior landlord authorises the subletting, and the subtenant has the exclusive use of the property, which is also their sole or primary residence, they will have the right to “quiet enjoyment”. This means that the superior landlord and intermediate landlord will only be able to enter the accommodation with the subtenant’s permission. The subtenant will also have the usual rights of a tenant with an assured periodic tenancy, even though they are a subtenant.

Here is a diagram that shows how subletting works:

Do tenants have the right to sublet a room or a rental property?

Tenants do not have an absolute right to sublet a tenancy under assured periodic tenancies, as they must obtain the consent of the landlord.

Not only will professionally drafted assured periodic tenancy agreements invariably contain a clause which says that the tenant cannot sublet without the landlord’s consent, but this is also backed up by statute. Section 15 of the Housing Act 1988, which states that it is an implied term of periodic tenancies that a tenant cannot sublet a property without the consent of the landlord.

The landlord doesn’t need to have a good reason for turning down the request. This is because it’s easy for the tenant to terminate the tenancy with two months’ notice.

Before fixed term tenancies were abolished by the Renters’ Rights Act, tenants did have the right to sublet, unless a clause said they needed the landlord’s consent.

>> Related Post: The rules for tenants to end a tenancy with a valid notice to quit

What are the different types of subletting?

Tenant moves out temporarily and lets to subtenant while away

Subletting often happens when the subletter needs to move out for a while, for instance, to go travelling or to relocate temporarily for work. The property usually continues to be their primary residence during their absence, as they intend to come back and their move elsewhere is temporary.

Example: a tenant in a student HMO who wants to stay in the property for a second year, but wishes to go away during the summer holidays or needs to go on a research trip to another town or country.

Rent-to-rent under commercial lease

Another type of subletting is rent-to-rent, although here, when the subletting is authorised, the subletter rents the property from the landlord under a commercial lease, who then lets it to one or more subtenants under an APT. (Some rent-to-renters let the property as short term lets).

The rent-to-renter needs a commercial lease and cannot have an APT because the property isn’t their primary residence, and the tenant needs to be an individual and not a company. As the rent-to-renter is not a “residential occupier”, they don’t have protection from unlawful eviction under the Protection from Eviction Act 1977.

>> Related Post: A landlord guide to rent-to-rent

>> Related Post: What landlords need to know about short term lets

Unauthorised subletting in breach of contract

Assured periodic tenancy agreements invariably have a clause that prohibits subletting without the landlord’s consent. However, some tenants let properties with the intention of subletting them to third parties, but without obtaining permission from the landlord, in breach of the terms of the tenancy agreement. The mesne tenant may sublet the property on a short term let basis, or on a room by room basis as an HMO.

Unless the superior landlord or agent does regular, thorough inspections of the property, they may be unaware that the mesne tenant is operating an unlicensed and overcrowded HMO. If the property is let as a short term let, wear and tear will be higher.

Sometimes tenants sublet to individuals who set up a cannabis farm or use the property for other criminal activities such as prostitution or modern slavery.

How is subletting different from having a lodger?

With a lodger, a “live-in” landlord rents out a room in their home to another person (a lodger) and they share facilities such as a bathroom, kitchen or living area. The landlord need not be the superior landlord, but can themselves be a tenant.

The important differentiation with a lodger is that the landlord and the lodger share facilities. The landlord needs to be living at the property immediately before the lodger moves in, and also when the lodger leaves. If lodgers have a self-contained space, and only share the hallway and landing with the landlord, they’re a tenant, and not a lodger. 

Lodgers aren’t tenants and don’t have the rights that come with being a tenant. They are mere “licensees” with rights to occupy some of the rooms in the property, but without an exclusive right to occupy. A subtenant on the other hand does have exclusive rights to occupy some or all of a property.

The difference between a subtenant and a lodger is fairly nuanced, and it’s easier to explain with examples:

• An HMO tenant under an APT moves out to go travelling, and sublets their room and the right to use the shared facilities to a subtenant, who moves into the subletter’s room after the subletter moves out. This is a sublet.
• A tenant of a two-bedroomed flat lets the second bedroom to another person. The tenant continues to live there, as a resident landlord, and they share a kitchen and bathroom. The tenant is taking on a lodger, and is not subletting.
• A tenant of a house lets the top floor to another person. The top floor has its own bathroom and the room has a small kitchen area. They are not allowed to use the kitchen and bathroom of the main tenant, and the only shared space is the hallway and stairs. This will usually be subletting.

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Managing the risks of subletting

How should a landlord respond to a request to sublet?

If a good long-term tenant is going away for a set period of time, it might make sense for a landlord to give consent for the tenant to sublet the property or room to another person. On the other hand, if they’re not planning to come back, it might make more sense to agree to end the tenancy with the existing tenant and begin a new direct tenancy with the new person.

Landlords should carry out referencing of the subtenant, and carry out Right to Rent checks. They should also satisfy themselves as to why the person wants to sublet the property for a limited period. Although the original tenant will still remain liable under the original tenancy agreement while it is sublet, it makes sense for the landlord or agent to visit the property before the subtenant moves in to check the condition of the property. I would also insist on an inspection visit within 4 weeks of the start of the subtenancy to make sure all is in order.

The written consent to sublet should contain an acknowledgement from the original tenant that they are still liable under the original tenancy agreement, and will continue to pay the rent. The subtenancy should contain the same obligations as the original tenancy agreement.

Who is responsible for the subtenant?

The mesne tenant / intermediate landlord is the landlord of the subtenant and is responsible for complying with landlord obligations. This means the mesne tenant must carry out a Right to Rent check on the subtenant, serve the relevant documents (EPC, EICR, Gas Safety Certificate, deposit registration etc), collect the rent and liaise with the superior landlord for repairs.

However, if the superior landlord accepts rent directly from the subtenant, this might be viewed as an assignment and not a subtenancy, which would create a new direct tenancy agreement between the superior landlord and the “subtenant”. In this case, the superior landlord would be responsible for complying with the obligations of a landlord, including the Right to Rent check.

What if the subletter stops paying the landlord?

Mesne tenant (subletter) is a rent-to-renter

If the mesne tenant is a rent-to-renter under a commercial lease, they won’t be a residential occupier. Consequently, the subletter won’t have any statutory rights under the Protection from Eviction Act 1977. Instead, they only have the contractual rights that are set out in the rent-to-rent commercial lease. A well-drafted commercial lease will enable the superior landlord to forfeit the lease with the subletter for non-payment of rent.

However, if the subtenants are residential occupiers under an assured periodic tenancy, then Section 18 of the Housing Act 1988 will protect their tenancy. The subtenancy will survive, and the superior landlord will become the subtenant’s direct landlord. The superior landlord should do a Right to Rent check of the subtenant if they become the direct landlord.

Mesne tenant (subletter) has an assured periodic tenancy agreement

If the mesne tenant had an assured periodic tenancy, but the property is not their sole or primary residence, they will not have protection under the Protection from Eviction Act 1977 or the Housing Act 1988. The superior landlord will be able to forfeit the tenancy, in the same way as it would for a rent-to-renter. However, the underlying subtenancy would remain in force, assuming it is an assured periodic tenancy.

On the other hand, if the property is still the mesne tenant’s primary residence, and they are subletting during a temporary absence, the superior landlord would need to use the remedies under the Housing Act 1988 to recover possession. Now that Section 21 has been abolished, the landlord would need to use grounds for possession relying on mandatory Ground 8, or discretionary Grounds 10 and 11, under Section 8. The landlord would be able to make a claim on the mesne tenant’s deposit, and pursue them for any additional unpaid rent in the Small Claims Court.

>> Related Post: How to carry out Right to Rent checks

What rights do subtenants have?

An authorised subtenant who has exclusive possession of all or part of a property as their only or principal home, and who is an individual, has an assured periodic tenancy in their own right. Their landlord is the mesne tenant, but their rights are the same as those of any other tenant under an APT.

That means the subtenant has security of tenure. As Section 21 has been abolished, they can only be removed on one of the Section 8 grounds for possession, and following the correct procedure.

They have the right to quiet enjoyment and exclusive possession, so neither the mesne tenant nor the superior landlord can enter without permission, apart from the usual access on notice for repairs and inspections. The mesne tenant owes them the repairing obligations of a landlord and must protect any deposit in an authorised scheme.

Also, if the lease between the superior landlord and the intermediate landlord comes to an end, under Section 18 of the Housing Act 1988, the rights of the sub-tenant continue. In this case, the superior landlord steps into the mesne tenant’s shoes as the subtenant’s direct landlord.

Consequently, if a superior landlord authorised the subtenancy, the sub-tenant does not lose their home when the lease above them ends.

This is why authorised subletting is so important. A subtenant of an unauthorised sublet, where the tenant let the property in breach of their own tenancy agreement with the superior landlord, has rights against the mesne tenant who granted the subtenancy, but is not protected against the superior landlord under Section 18. When the mesne tenancy ends, the superior landlord can recover possession.

How can a landlord recover possession from an authorised subtenant?

The short answer is that it is far from easy.

Once the superior landlord becomes the direct landlord under Section 18, the subtenant has a full assured tenancy, and the superior landlord is in the same position as any other landlord. Possession can only be recovered on a ground under Section 8.

If the subtenant has done nothing wrong, there is no breach to rely on. The superior landlord would need a ground that applies to a tenant who is not at fault: Ground 1A if they want to sell, or Ground 1 if they or a family member want to move in. Both require four months’ notice, and the tenancy must have been running for at least a year. If the subtenant falls into rent arrears, Grounds 8, 10 or 11 are available, with four weeks’ notice. Ground 12, breach of a term of the tenancy, only applies where the subtenant has broken one of their own obligations.

>> Related Post: Section 8 grounds for possession: up to date landlord guide

>> Related Post: Grounds 1A and 1: How to evict tenants to sell up or move in

>> Related Post: How to evict tenants using Section 8 with Form 3A

How to spot unauthorised subletting

Signs an applicant might want to sublet instead of living there

Here are the signs to look out for when an applicant is viewing a property that suggests they might not be planning to live there:

• No good reason to want to live in the area. I always look for applicants with good local connections.
• Doesn’t ask questions about the local area, for instance, where the shops or schools are, what amenities are nearby.
• Doesn’t seem interested in the property, eg doesn’t ask about storage or parking, doesn’t look at the kitchen or bathroom.
• Wants to rent the property without seeing it.
• The other tenants are too busy to view the property.
• Offers 6 months’ rent up front.
• Is cagey about where they are living now.
• Offers considerably more than the asking rent.
• Is in a rush to move in, and doesn’t want to go through referencing.
• Doesn’t want to join a WhatsApp group with a self-managing landlord for tenancy management.

>> Related Post: How to choose good tenants

Spotting unauthorised subletting after the tenancy starts

It’s important for landlords or their agents to carry out regular inspections to check for unauthorised subletting (as well as checking the condition of the property). Leaving it to one inspection a year is not enough. I inspect my rental properties a month after tenants move in, primarily to check if there are any maintenance issues, but also to keep an eye out for signs that someone other than the tenants may have moved in.

When I let to a new tenant, I let the neighbours know who I’m letting the property to (eg family of 3, a couple), and ask them to call my mobile number if they ever have concerns about the property.

Here is a list of things to look for on an inspection that may suggest the tenant may be subletting without authorisation:

• Locks on bedroom doors and kitchen cabinets when the property is a single let to a single household (a couple or family).
• A key safe has been installed outside the property without good reason, eg for a dog walker or childcare. These are a sign that the property is being let on Airbnb.
• The tenant refuses access or inspections.
• The tenant is hard to contact and is always away.
• Reports from neighbours of different people arriving and leaving with suitcases, using the key from the key safe.
• Higher than average wear and tear that is more than you’d expect with the tenants.
• Signs of more people living / staying at the property than are in the tenancy agreement, eg extra bedding, lots of belongings in suitcases.
• Cooking equipment (microwave, kettle, fridge) in bedrooms when it’s let to a single household, and not as an HMO.
• The rent is paid by someone who is not listed in the tenancy agreement.

>> Related Post: How to carry out successful mid-tenancy inspections

>> Related Post: The Ultimate Property Inspection Checklist

What should landlords do about unauthorised subletting?

If a landlord discovers that their tenant has been subletting the property without consent, and the property is no longer the tenant’s sole or primary residence, they will have lost their tenancy status. This means that the superior landlord can terminate by serving at least 4 weeks’ notice to quit, without needing to recover possession under Section 8.

However, if the mesne tenant still lives in the property and has, say, let the spare room, or they have gone travelling for a short period but the property remains their primary home, they will still have protection from eviction under statutory rights under the Protection from Eviction Act 1977 as a residential occupier. This means the landlord will need to serve two weeks’ notice relying on discretionary Ground 12 under Section 8, ie breach of the clause in the tenancy agreement not to sublet without the landlord’s consent.

If a tenant sublets the entire home and/or if they sublet the property and move elsewhere, they will lose their tenancy status and the landlord can serve a notice to quit without providing legal grounds or proving to the court it is reasonable to evict them. Notices must be given in writing and include an expiry date – the notice period must be at least 4 weeks.

>> Related post: How to evict tenants under Section 8

Final thoughts

With all the complications inherent in subletting, it is easy to see why landlords often turn down requests for consent to sublet.

Often it’s simpler for the landlord to release the tenant from their tenancy agreement and enter into a direct one with the person who would have been the subtenant. If and when the original tenant wants to move back, they’d need to reach agreement with the landlord and the “subtenant”.

Landlords and agents should always be on the lookout for unauthorised subletting, and take swift action to bring it to an end.

If you have questions, you can ask me at twice-monthly livestreams in my membership, The Independent Landlord Hub.

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