Most tenancies occur between a landlord (who owns the property ) and the tenant (who rents form the landlord) and the agreement between the two forbids the tenant from subletting without permission, but there are some cases where a tenant may be wish to sublet a room or a property.
This guide aims to give you information about what you need to know before you sublet a property you rent or agree to take a sublet from another tenant.
Who's who of subletting:
- Head landlord – this is the property owner; sometimes call the ‘superior landlord’
- Mesne tenant – this is the tenant who rents from the property owner; sometimes call the ‘head or original tenant’
- Subtenant – this is the tenant who rents from the mesne tenant
Subletting a property you rent from a private landlord
Most tenancy agreements will have a clause that advises you if you are not allowed to sublet a property, or if you wish to sublet the property that they should seek permission from their landlord first.
If your tenancy agreement does not provide provision for subletting you might be able to sublet without the landlord’s permission or knowledge.
There are many reasons why you might want to sublet a property you have rented and it is best advised to approach your landlord first to discuss if this is a possibility.
If your tenancy agreement states that you must seek permission from your landlord before subletting the landlord should not unreasonably withhold consent and you should ensure you receive any consent in writing.
If your landlord refuses you permission to sublet or you sublet without their knowledge you risk losing your property and getting a poor reference.
If the landlord does agree to the sublet they will probably not want to deal with the sub tenant and will expect you to pay the rent directly to them as well as managing repairs and access for inspections. You will remain responsible for the tenancy and
the behaviour of any sub tenant.
Subletting a property from another tenant
If you live in a property that is rented from a landlord (head) by another tenant and you pay your rent to that tenant (Mesne) you are likely be a subtenant.
If you sublet the whole property from the Mesne tenant and do not share any part of the property with them you are likely to have an Assured Shorthold tenancy agreement (although you could have an assured tenancy agreement depending on the terms of your agreement and when the tenancy started, if you think you have an assured tenancy you should seek further advice). You will be responsible to pay the rent and behave in a tenant like manner and your landlord has a responsibility to maintain the property and not interfere with your peaceful enjoyment of the property.
If your landlord (Mesne tenant) wants you to leave the property they must serve a notice and follow the correct legal process to get a court order to evict you. This process if the same as if the head landlord wants to end the tenancy with the Mesne
If you want to leave the tenancy you should give notice to the Mesne tenant, you should not seek to leave the tenancy within the fixed term without a break clause or the Mesne tenant accepting a surrender of tenancy. If the tenancy is periodic you
should check your tenancy agreement for the notice period required or give notice equivalent to the rental period.
Most Mesne tenants should have permission from their head landlord to sublet and you should ask your landlord (Mesne tenant) if they have permission to sublet the property to you.
If the Mesne tenant does not have permission to sublet to you this will not affect your rights unless the head landlord evicts the Mesne tenant. If the head landlord evicts the Mesne tenant this will end your tenancy unless you can prove that the head landlord has granted permission for your to be there (i.e. accepting the rent directly).
If the head landlord has served notice or applied for a court order to evict the Mesne tenant you should seek advice about how this affects you.
Living with your landlord
If you sublet part of a property and you share the property with your landlord (Mesne tenant) you would be considered and excluded occupier. You would be an excluded occupier where you share a kitchen, bathroom or other living area with the landlord (Mesne tenant) but have exclusive access to the area of the property you rent, i.e. your bedroom, en-suite.
If you do not have exclusive access to any part of the property you are more likely to be a lodger. Lodgers have fewer rights than subtenants and you should seek advice if you think you are a lodger.
If your landlord (Mesne tenant) has given you a fixed term tenancy agreement you are entitled to stay until the end of this agreement unless the superior landlord takes action to evict the original tenant.
If the head landlord seeks to evict their tenant then your tenancy will also be ended. If your landlord wants you to leave they must give you notice which does not expire in the fixed term and is equivalent to the rental period. The landlord will not need a court order as after the notice has expired you would be considered a trespasser if you have not left.
If you sign a fixed term tenancy agreement you are agreeing to abide by the terms of that tenancy agreement for the given period (usually six or 12 months). That means you have agreed to pay the rent, live in the property as your principle home and be responsible for your part of the tenancy agreement.
If you leave the property before the end of the fixed term without the express agreement of the landlord you could face penalties including loss of your deposit, being asked to pay the rent till the end of the fixed term (or until a new tenant is
secured), poor reference from the landlord.
If you need to leave the tenancy before the end of the fixed term you should contact the landlord and try and negotiate an early surrender of the tenancy. The landlord does not have to agree this and if they do agree they might ask for some
compensation to release you from the agreement early such as retaining your deposit.
Any agreement you reach with the landlord should be secured in writing to avoid dispute later. If the landlord does not fulfil part of their responsibility under the tenancy agreement this does not necessarily mean that you can leave the tenancy without penalty. If the landlord is not doing repairs or have failed on other parts of their responsibility these failings should be reported to the correct agency rather than assuming you can leave the property.
If you have a fixed term tenancy agreement you can leave on the last day of the tenancy without giving notice to the landlord, however it is considered best practise to give the landlord one months’ notice. As well as ending the tenancy on good terms this allows you to arrange an end of tenancy check out with the landlord to prevent problems with deposit dispute later.
If the tenancy is periodic (rolling/ monthly etc.) you should give your landlord notice in writing that you intend to leave the tenancy. If the tenancy agreement does not state a required notice period you should give the landlord one months’ notice if you pay your rent monthly and four weeks’ notice if you pay your rent weekly or fortnightly.
When you have given the notice the landlord should arrange a pre end of tenancy inspection to go over any matters that need addressing before you leave the property. On the last day of the tenancy the landlord should arrange to meet you to
return keys, agree final meter readings, provide a forwarding address and agree the end of tenancy inventory. If you have paid a deposit the landlord should arrange the return of this deposit, or provide you with reason for deposit retention, within 10 days.
After you have given notice and prior to you leaving the property the landlord might ask for access to show round prospective new tenants. This access should be done by prior arrangement and with your agreement but you should not withhold reasonable access to your landlord without good cause.