One of our Landlords has contacted us to ask for advice as she believes one of her properties are being sub-let against the terms of the tenancy agreement in place- so what now?
When individual rooms/spaces are rented but the contractual tenant is still in occupancy these are called lodgers or sub-tenants however this is not sub-letting. A sub-let property is a property, let out in its entirety, by the tenants to another party.
Sub-letting is strictly against the terms of most private tenancy agreements. So, where to go from here?
Validate occupancy and identity- this involves a meeting with any/all occupants at the property where they must provide proof of ID (passport, etc) and proof of address (a bill or bank statement of some type registered at the address- ideally this should be council tax or gas/water/electricity. Photograph any documentation for your records.
Unlawful subletting is not, on its own, a criminal activity – it is, however, a breach of tenancy contract and in some cases of the statutory rules. As a rule, a large percentage of unlawful subletting or occupancy cases end with the tenant voluntarily surrendering the tenancy once the breach is identified or upon the service of notice. However, where the tenant does not voluntarily end the tenancy the landlord will usually take action to do so and regain possession of the property through the county court. In some circumstances, landlords may also take civil action for damages.
Obtaining possession of property can be a detailed and sometimes complex process. The type and nature of evidence to be collected varies according to tenancy type and nature of the breach. Landlords need to have a comprehensive understanding of tenancy law and the evidence necessary to secure a successful outcome in court. Where Landlords understand the significance of the evidence required and are confident about their working procedures and evidence collection methods, the likelihood of regaining possession is strong. Whilst the legal requirements may differ according to tenancy type and nature of the breach, where legal action is being considered the following principles should be applied to each case:
• Sufficient warning and/or pre-court notices have been issued
• Action sought is proportionate and appropriate
• Appropriate evidence has been collected and logged to ensure an order is likely to be granted
• Adhere, at all times, to the data protection requirements when investigating the case and gathering evidence
• Regularly seek the appropriate legal advice throughout the process to ensure the law is adhered to at all times- failure to do so can result in your claim being thrown out or even a counter-claim being filed
Ultimately it is a lengthy process and the quickest and most amicable solution is for the Landlord and original Tenants to agree on terms for the original tenancy to be surrendered and the property to be returned, vacant and in good clean condition, to the Landlord as soon as possible.