What is Subletting and is Subletting Legal?

mariam-abu-hussein
Mariam Abu HusseinLegal Assessment Specialist @ Lawhive
Updated on 13th December 2023

As a tenant, you might be interested in the idea of making additional money from your property when you’re away from home, or you might have a spare room you don’t use. But you’re unsure whether you are allowed to rent your property to someone else.

what-is-subletting-and-is-subletting-legal

Landlords need to understand that they are compliant with the law to feel their main source of income is protected. Knowing what to do if your tenant is illegally subletting your property is also key.

In this guide we’ll help tenants and landlords understand what subletting is, what the landlords and tenants act 1954 says and the potential consequences of subletting.

What is subletting?

Subletting is when a tenant rents out some or all of their home to someone else, known as a subtenant. The subtenant’s lease will give them access to some or all of the property - the specific use they are granted is exclusive.

The subtenant often has no relationship with the landlord, as they are renting the space or property from the lead tenant, and usually paying them directly, rather than the landlord. The landlord may not even know that the subtenant is living at the property.

Of course, landlords will want to know who’s living in their property, and will no doubt be unhappy if someone is living there without their consent. 

Now, we’ve introduced the concept of subletting, let’s take a look at what we’ll address in this article.

  • What can happen if I’m subletting illegally?

  • What can I do as a landlord if I discover my property is being sublet?

  • Who is responsible for the welfare of subletters?

Is it illegal to sublet in the UK?

Subletting is legal in the UK provided it is allowed in the lease terms. However, typically leases default to stating that subletting is not permitted through a clause.

Fortunately, a lease doesn’t have to spell out that subletting isn’t allowed for it to be illegal. As long as the landlord verbally states they don’t allow subletting, if a tenant lets someone sublet the property, then they are breaking the law.

Under property law if a tenant sublets a property after being told it’s not accepted by the landlord, they are absolutely committing fraud.

Is subletting the same as renting out?

There are various differences between subletting and renting out. A crucial one is whose name appears on the lease.

Renting out a property means you’ll deal with the landlord; subletting means you’ll deal with the tenant, who’s likely to have less experience with the property market.

So, factor that in if you consider moving into a sublet.

Is letting a friend stay subletting?

If a friend or loved one has moved into your home temporarily and you’re not charging them rent, this is not considered subletting. But it may be against the terms of your lease, so do check before letting anyone stay at your property, who isn’t named on the lease. 

It’s also worth checking with your landlord if it’s OK to have someone over, as your landlord might think you have sublet your property if they find out someone else is staying in the property.

What is the punishment for subletting?

Legally speaking, you will only face consequences for illegally subletting. If you do sublet your home out without your landlord’s permission and they find out, they could pursue action against you. 

Your landlord could start proceedings to evict you if by taking in a subletter you have broken a term in your lease. You could be prosecuted in the magistrates or crown courts and jailed, for six months or two years respectively.

Moreover, you may have to pay back the entirety of the money you were paid while subletting against the rules of your lease.

What can a landlord do about subletting?

Subletting against the terms of a lease is concerning for a landlord. The subletters may not know they are doing wrong, or even the tenant who arranged the sublet, however in either case you had no opportunity to vet the person(s) living in your property. 

Subletting may be against the terms of your mortgage too, and a lender can remove a mortgage from a landlord that sublets, so check your mortgage terms carefully if you’re considering allowing your tenants to sublet.

Insurance comes into play too - subletting can void your insurance policy, or increase your premiums if you rearrange it.

If you find or suspect that someone is living in your property against your knowledge, you’ll want to do something about it. The good news is you have rights.

If you’re unsure, you can carry out regular inspections of your property. This will warn the subletters, because legally you must give notice of inspections, but it would be difficult for subletters to cover up evidence of them living at the property.

If you’ve determined that your property is being sublet, you should consult with the tenant. It may be they are worried about making rent, in which case you can negotiate with them. This could lead to a new agreement being signed, or the tenant moving out.

You can also refuse subtenants living at your property, but this assumes your tenants are reasonable. If niceties fail, landlords can take legal action and begin an eviction process under Section 21 or Section 8 notices.

For landlords, we’ve produced a handy guide for everything you need to know about the eviction process.

For tenants, here’s everything you need to know if you think you’re being evicted illegally.

Subletting of social housing

For some social housing tenants, you could be facing criminal charges when subletting a property you don’t have the right to in your lease, or if you do so without your landlord’s permission.

Subletting your social house illegally can have even more serious consequences. You could even lose your home. 

You can legally sublet a social house if you:

  • Have a family intervention tenancy or an introductory or demoted tenancy 

  • Live in a shared ownership property where you buy part of the property and rent the remainder you don’t own

  • Have a lease with a private landlord

What is the difference between a lodger and a subletter?

There are legal differences between a lodger and a subletter. A subletter can rent an entire property, but a lodger can only rent a room. The main difference between them is that a subletter has exclusive access to their room. 

Practically, this means a landlord needs permission to enter a subtenant’s room. However, a landlord can enter a lodger’s room and may do so for the purpose of inspection, or cleaning.

Who is responsible for subtenants?

Typically, a landlord does not have a legal relationship with the subtenant, so they would not be responsible for their welfare. However, sometimes a landlord creates a relationship with a subtenant by mistake. This can be the case if a landlord collects rent directly from a subtenant, rather than asking the main tenant to collect and pay all the rent in one lump sum.

As long as you don’t create a legal relationship with a subtenant, they will be the responsibility of the tenant. Under these circumstances the subletter is the lodger of the tenant, and they have lodger’s rights. These rights can be held against the tenant if they break the terms of the lease, as the tenant is now their landlord.

As a tenant or landlord it’s crucial to understand what you’re responsible for, so we’ve created a comprehensive guide on everything you need to know about your responsibilities. 

Let us support your property challenges

Landlord and tenant disputes can be lengthy and expensive. If you need help with a legal matter, whether you rent your home or rent out a property, get a free case assessment with our legal team to find out how our expert landlord and tenant solicitors can help you. 

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