Understanding subletting
Subletting occurs when a tenant named on the tenancy agreement rents out all or part of a residential property to another person in return for payment. In this situation, the property owner is referred to as the head landlord, and the original tenant is known as the mesne tenant or direct tenant. The mesne tenant has a tenancy agreement with the head landlord and, in turn, grants occupation to the subtenant. This arrangement creates a direct legal relationship between the mesne tenant and the subtenant, operating separately from the tenancy agreement between the head landlord and mesne tenant.
Under the Housing Act, tenancy agreements for residential properties often contain clauses regulating subletting. These typically require the tenant to obtain the landlord’s written consent before creating a subtenancy. If a tenant proceeds without consent, this is usually treated as a breach of the tenancy agreement. Even where the tenancy agreement does not explicitly mention subletting, a tenant should still request permission before allowing someone else to live in the property.
In some circumstances, a landlord’s actions can affect their position regarding unauthorised subletting. For example, if you accept rent directly from a subtenant, this may be interpreted as recognising their occupation, potentially complicating possession proceedings. Landlords should therefore act cautiously and seek advice before accepting rent from anyone other than the original tenant when dealing with a suspected or confirmed subletting arrangement.
Can I evict a tenant who is subletting?
The subletting tenant will be held to the same rules as the mesne tenant, which includes the rules around eviction. As such, your right to evict the subletting tenant at the end of the mesne tenant's fixed term will depend on whether the sublet agreement was lawful or unlawful.
Lawful subletting
If the landlord has granted permission to sublet - for example, through a clear clause within the tenancy agreement - this creates a lawful subtenancy. In these circumstances, the Protection from Eviction Act 1977 applies. This means the subtenant benefits from statutory protection and, in some cases, may become a direct tenant of the head landlord when the mesne tenancy comes to an end. At the end of the mesne period, they can request to stay on for a new tenancy, but you have the right to decline and have them exit the property.
Where the subtenancy is lawful, possession cannot be regained simply by asking the subtenant to leave. You will need to obtain a court order to evict them once the mesne tenancy has concluded. Attempting to remove them without following this process could result in unlawful eviction claims.
If the tenancy is an assured shorthold tenancy (AST), you can begin possession proceedings by serving a Section 21 notice. This notice must give at least two months for the tenant to vacate and cannot be served within the first six months of the tenancy. It is also important to comply with all legal requirements for a Section 21 notice to be valid, such as protecting the deposit and providing the correct prescribed information.
Unlawful subletting
If the subtenancy was created without the landlord’s permission, it is deemed unlawful. Once the mesne tenancy ends, the subtenant becomes a trespasser and is not protected under the Protection from Eviction Act 1977. They will have no legal right to remain in the property, but you must still follow the proper legal process to recover possession.
Alongside serving a Section 21 notice, you may also choose to issue a Section 8 notice, relying on the breach of tenancy as one of the statutory grounds for possession. Serving both notices can provide greater flexibility if the matter reaches court, and allow you to proceed on the most effective route for regaining possession.
Even where the subletting is a clear breach of pre-existing tenancy agreements, you cannot remove the occupants yourself or change the locks without a court order. Action must be taken against the mesne tenant (your original tenant) and steps put in place to deal with the unlawful subtenant they have introduced. Both parties must be removed through lawful proceedings, and all actions must meet statutory requirements to avoid the risk of a criminal offence for unlawful eviction.
What can I do if my tenant and/or the subletter ignore an eviction notice?
If a tenant or subletter remains in your property after the date specified in the written notice from your eviction order, the next step is to apply to the county court for a possession order. This is a legal document issued by the court confirming your right to regain possession of the property. The application can usually be made online or by post, and you will need to provide evidence that the correct eviction process was followed, including proof of service of the notice.
If the court grants the possession order, it will set a date by which the occupants must leave. Should they fail to vacate by the date this notice expires, you can then apply for a warrant for possession. This authorises county court bailiffs to attend the property and remove the occupants, along with any belongings they have left inside.
It is not lawful to attempt to remove the tenants or subletters yourself without a court order and the involvement of bailiffs, as doing so could constitute an illegal eviction. Following the proper legal process helps protect your position and avoid potential claims against you.
How AST Assistance can help landlords with evictions
With over 15 years of experience in the property industry, AST Assistance provides landlords with clear, practical support in managing all aspects of the eviction process. We have worked with landlords in a variety of circumstances to protect their investments and maintain control over their properties.
Our experience covers everything from preparing and serving the correct notices to managing communication with tenants and overseeing the entire process from start to finish. We also offer guidance on related issues such as mediation, resolving rent arrears, and dealing with situations involving unlawful occupation.
By providing a structured, step-by-step approach, we help landlords reduce disruption, avoid unnecessary delays and achieve a smooth transition so their property can be re-let or repurposed without extended downtime.
If you're a private landlord looking to evict the subtenant occupying your property, get in touch by calling 01706 619954, emailing us on info@ast-assistance.com or filling out an online contact form and we will get back in touch at your convenience.
