Sub-tenant refuses to pay rent

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    Sub-tenant refuses to pay rent

    Hello, I'm a lead-tenant (sub-lessor) renting the entire flat from my landlord and subletting the other two bedrooms to subtenants. The landlord is aware and approved this.
    The current sub-tenant of one of the rooms moved in 20 days ago, however he didn't sign the contract I sent him (a two months rolling contract). Now, the sub-tenant informed me he'll be moving out end of September, however he refuses to pay September's rent and says I should use his deposit instead (his deposit is equivalent to one month's rent). I explained rent and deposit are two separate things and he cannot live in the flat in September without a deposit in place. I also explained I don't hold his deposit, the deposit I originally gave the landlord is held in a scheme, and the deposit he gave me when moving in was paid back to the sub-tenant who moved out before him, in the same way he'll get his deposit back once he moves out. So if he doesn't pay rent, I will need to pay his share out of my own pocket. He still refuses.

    Is someone able to please advise me what are my options here? I don't want to do anything which is against the law of course, however I hope there are some laws in place to protect me as a sub-lessor as well, or at least some possible actions available. Naturally, I want to avoid having a sub-tenant stay in the flat without a deposit in place as it carries all sort of risks - damage, theft, etc. This is my main concern.

    If he doesn't agree to pay rent isn't he in breach of contract (even though he didn't sign it. Does this help me in any way?), and doesn't this enable me some space for action? Like changing the locks for example, or any other suggestion? Clearly I want to avoid the risk of having a sub-tenant live in the flat without a deposit in place for safety.

    Regards,

    Joe

    #2
    I think you have lodgers, not sub-tenants.

    Is the tenancy in your sole name?

    Comment


      #3
      He sounds like a lodger to me.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Thanks for the replies. Yes, the tenancy is in my name alone. In the sub-tenant's contract with me (even though he hasn't actually signed it) it's specified he has sole use of his bedroom. I think this makes him a sub-tenant rather than a lodger?

        Happy to be clarified on this? And any advice on what are my options either way please?

        Comment


          #5
          You want to change that, so that they don't have exclusive access to anywhere.

          If they're a lodger you only have to give reasonable notice (which isn't defined anywhere) and when it expires you can lock them out.
          If they're a tenant (or a sub-tenant) you'd have to go to court to force them to leave.

          You can always sue them for the rent, and make sure they know that.
          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #6
            Ok thanks, will definitely change this in the future. So lodgers would sign a lease with me too? I should simply remove the bit about exclusive access to the bedroom and this will legally make them lodgers rather than sub-tenants?

            And for the current situation with the sub-tenant who doesn't want to pay rent - there's nothing else I can do to avoid him staying here without a deposit in place?

            Comment


              #7
              Even though it's not signed, the agreement you have given your tenant is still probably valid.
              What does it say about you giving them notice?
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #8
                Lodgers agree to a licence, not a lease. You have to be careful because security of tenure is based on the actual situation, not the paperwork, and some, unscrupulous, landlords try to claim that leases are licences, when they are not. (Even if you have a lease, it is an excluded tenancy, so there is less security of tenure than for an AST. That's because you are a resident landlord.)

                You need to be aware that the situation you are describing is an HMO, and it need to be managed according to the HMO management regulations, even though it only needs licensing if Additional Licensing is in effect. That includes a requirement to post notices detailing who the manager is, and to take various fire safety measures, e.g. bedroom doors are likely to have to be fire doors and hallways may need to be kept clear.

                It is, unfortunately, fairly common to stop paying the rent and rely on the deposit, as, in practice, although this is a breach of contract, there is nothing that can be done before the person leaves, anyway. All you can really do, if they do leave, is point this out in references. You can still sue for damage.

                Comment


                  #9
                  What's happened here is that your landlord has transferred some of his risks onto you. A landlord would normally be advised to have cash reserves of well over six months' rent to cover tenants that stop paying. Because you have a license or excluded tenancy, it is slightly easier to evict, but you still have the problem of getting the money.

                  Your landlord would probably have done a credit check if he had take on the other two directly, but you probably didn't.

                  I'd also be concerned that he's trying to evade HMO responsibilities. Although an owner occupier with two lodgers is exempt from HMO legislation, the property is not exempt, in your situation.

                  Comment


                    #10
                    They are not lodgers. They are excluded tenants, because they were given exclusive access to their room.

                    Comment


                      #11
                      He hasn't not paid yet.
                      You should give reasonable notice (although I wouldn't if the issue was no rent).
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        The contract says 'the sub-lease covers sole use of the assigned bedroom and shared use of the communal areas (kitchen, living room, bathroom). Does this not mean 'exclusive access to'? (there is no lock on the door)
                        As I understand it, this renders him a sub-tenant (or excluded tenant), rather than a lodger. Right?

                        The contract specifies one month notice. However he has breached the contract by refusing to pay rent (rent is paid on the 20th of every month for the month ahead, this is in the contract. So September's rent was due yesterday and he refuses to pay it), I'm unsure if this gives me any leeway?

                        He has paid until the end of August. I could give him a 10 day notice and have him move out by the end of the month (if he actually does is a whole different story) - if it's legally ok for me to do so?

                        Comment


                          #13
                          If he's an excluded occupier he has so few rights it's almost impossible for him to do anything, even if what you do is break your contract (in return for him breaking it).
                          He could (in theory) sue you, but he won't.
                          And that would take months to happen, it's not going to help him in the short term.

                          I would give him notice for the end of the month and tell him you'll simply change the locks if he doesn't pay or go.

                          Given that you live there, I'm not sure what the point of the deposit is, you'll know if anything gets damaged, and you don't want to use it for rent.
                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            I suspect the deposit has gone towards the superior landlord's deposit, so the purpose of the deposit is to cover part of the OP's own deposit.

                            Comment


                              #15
                              I've just rang https://www.propertyinvestmentproject.co.uk for some advice, they said that regardless of the wording of the contract, if the contract duration is less than 6 month it's not considered an Assured Shorthold Tenancy. Therefore legally my tenant will be considered a lodger. Thoughts?

                              Moreover, I found this:
                              Tenants are excluded from protection if their landlord is a Resident Landlord (which I am), which means I'm only required to give 'reasonable notice'. So does this effectively overrides our written contract which states one month notice?
                              See 'Resident Landlord': https://england.shelter.org.uk/legal...m_protection#3

                              If this is the case, my tenant is considered an 'Excluded Tenant', which means I only need to give him reasonable notice. Our contract does say one month notice, however since he breached it by not paying rent am I right to understand that as an excluded tenant I can evict him on a reasonable notice only?
                              See 'eviction of excluded occupiers': https://england.shelter.org.uk/housi...uded_occupiers

                              Also, as such I don't need to protect the tenant's deposit.

                              Comment

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