Subletting - not permitted by landlord

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    Subletting - not permitted by landlord

    Hello!

    me and three friends have recently signed a contract for a 7 bedroom house (from the 1st of September onwards).
    The idea was to sublet the remaining rooms to get some of the rent back.

    In the contract it says:
    The Tenant shall not assign, sublet, charge or part with or share possesion or occupation to the property or any part thereof without the prior written consent of the landlord (and the landlord is not entitled to withhold that consent unreasonably).

    We phoned one of the landlords (there are two) and he said that there will probably not be a problem, but he will talk to the second landlord and will come back to us. We didnt hear anything from him back, so we thought it would be fine.

    We started subletting and two people moved in soon after our contract started (3rd and 4th of September).

    Now on the 4th, we went to the ageny, which was renting out the property in the first place, and they told us "by the way, the landlord forbids you to sublet the property, because it was just meant for four people and he would have charged more otherwise".
    The two people are in the property already and we were very shocked about those news. We do not know what exactly to do now and if the landlord has a strong position in this. The landlord currently still does not know that the property is already being sublet.

    Can you please please please help me with that problem??!?

    #2
    There are two issues, the legal one and the landlord.

    Legally, you are not subletting IMHO. You would be subletting if you left the property and rented it out to another person, thereby granting them a tenancy, but your current arrangement, with the current tenants as the joint 'resident landlords' would just make the new occupiers "excluded occupiers" (similar to lodgers), not tenants and as such they have minimal occupation rights.

    I believe the above is the legal situation, although the area is grey.

    Your bigger issue though is that even if you can prove you are not subletting, the landlord is going to feel agrieved. He obviously doesn't want extra people, even if his AST doesn't forbid you from doing so. Therefore, when your current contract expires, do not expect him to renew it.

    Also, remember that the landlord has to allow for fair wear & tear, but only for fair wear & tear for the 4 tenants - anything above that, you will have to pay for out of your deposit.

    Comment


      #3
      Originally posted by Nimott View Post

      me and three friends have recently signed a contract for a 7 bedroom house (from the 1st of September onwards).
      The idea was to sublet the remaining rooms to get some of the rent back.

      (

      One potential major problem is that you may now be in a "house in multiple occupation" which has to be registered with the Local Authority.

      The landlord will be in serious trouble if this has happened and the place is not registered.

      With three or more floors, and five or more unrelated occupants, the house is certainly subject to mandatory HMO licensing.
      Many local authorities operate discretionary HMO licensing widening the criteria considerably (fewer occupants, fewer floors).

      If you have unwittingly brought the house into the category of an HMO, and it's not licensed, you should expect the landlord to react severely.

      How many floors are there in the house?

      Comment


        #4
        I agree with Snorkerz, you are not subletting, you are taking in lodgers, not tenants.

        If your TA does not expressly forbid it you may get away with it for the duration of your TA but as has been said do not expect to stay there beyond your current agreement.

        You could explain to the LL and offer to pay a bit more, as it seems from the LA's comments that it is not the number of people in occupation that bothers the LL just the loss of potential ioncome.

        Whether this affects issues such as HMO or not I do not know, I have no knowledge or expertise in that area.

        pm
        Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

        Comment


          #5
          You have committed the common error of thinking that no response equals approval.

          It sounds like a sub-letting to me. Even if it is not, it would be covered by the clause which goes on to say: "...or part with or share possesion [sic] or occupation to [sic] the property or any part thereof " and that would include a licence.

          There are two ways of dealing with this:

          1. Keep your heads down and hope for the best.

          2. Give the agent (or the landlord if rent is paid to the landlord) notice of the arrangement, but on the day before rent is paid. If rent is accepted, the breach is waived. This does of course depend on the agent or landlord being ignorant of the law.

          Comment


            #6
            Lawcruncher is right, how did I not notice the follow-on bits? However, I would be suprised if the landlord could take any serious action - I can not see a section 8 eviction happening, expecially with the "and the landlord is not entitled to withhold that consent unreasonably" proviso. If you filled the house with 20 people, it might be reasonable to withold permission, however to refuse to allow the correct number of people for the rooms available would (imho) be unreasonable.

            Lawcrunchers suggestion "2" sounds like the way forward, but make sure it is dated and in writing.

            However, as I said in my earlier post - don't expect to be living there after your current tenancy agreement runs out.

            Comment


              #7
              Hi, thank you for the replies!!

              Our own contract is a Assured Shorthold tenancy Agreement.
              The agency wanted a monthly direct debit from one single account. However, two of us have paid their full 10 months rent in advance, because we did not want to share one account, and the other two will be paying monthly from one account.
              Does it still work to give the agency/landlord notification one day before my friends pay in their rent?
              Also, the landlord is coming to the property on Monay (Tomorrow) to fix current house issues (gas, lights etc), so he will notice by then latest!
              I do not want to live in that house for more than the length of the contract, the landlord is quite bad anyway.

              I have already received a deposit, which I wanted, from the two people, who moved in. I have also set up a subletting agreement for them to sign, after I have received the rent, which both of them are paying all in advance.

              Sad S - in the house, there is a first and a second floor. There are three bedrooms and one bathroom on the second floor, there are three bedrooms and a kitchen on the first floor and there is one bedroom, a kitchen, a bathroom and a lounge on the ground floor

              Property Mongrel - I was already wondering, if I should offer some money to the landlord, but I would like to know how strong my position is, when we do that. Do I have to give him what he charges or could we meet in the middle? What, if we do not come to an agreement, can he sue me?

              Lawcruncher - I also thought about keeping heads down, but the property currently has a lot of issues, which the landlord needs to get fixed. So the agency said that he will come around on Monday to fix the issues. That is when he sees that we have subletted. And he might have a big argument with us in front of those two people, who have just moved in and do not know about any contract issues.
              There are some subletting contracts on the internet, which I downloaded and was intending to use for the two people, who have already moved in. I am still waiting for the rent payments, which they transfered online, and I have not received onto my account yet.

              Snorkerz - Can the landlord throw us out of the house / sue us for this?
              We have not sent any written request to him or the agency, but phoned him up and asked him.

              Thank you for the quick answers so far!!!!

              Comment


                #8
                Don't issue your new tenants with a tenancy agreement - as you are their landlord, and you live in the premises - they are not covered by the 1988 Housing Act and can not have an Assured Shorthold Tenancy so issuing something that claims to be a tenancy agreement could cause confusion or aggravation. You would be better getting a lodgers agreement - they can be had for around a fiver from WHSmiths.
                Originally posted by Nimott View Post
                Snorkerz - Can the landlord throw us out of the house / sue us for this?
                We have not sent any written request to him or the agency, but phoned him up and asked him.
                1. Can he throw you out? Well you can NEVER be thrown out without a court order. He could possibly try to evict you using section 8 (ground 12) of the 1988 Housing Act which says
                Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed
                . However, this is what is known as a 'discretionary' ground, which basically means that a judge would be able to use his own discretion to decide if such a breach so severe to warrant eviction. I strongly suspect that a judge would NOT grant a possession order in this case.

                2. Can he sue you? Realistically, he would have to show that he had suffered some financial loss due to your breach of the tenancy agreement. He may be able to prove a minor additional amount of wear and tear - but I would expect this to be dealt with via your deposit.

                Comment


                  #9
                  Guessing the answer to your other Q - I imagine the important thing is that the agent accepts some rent after the notification. There is no concept in law of your rent and their rent - the tenant (that's all 4 of you as one unit) owe £X per month. Full stop.

                  Comment


                    #10
                    Originally posted by Snorkerz View Post
                    Don't issue your new tenants with a tenancy agreement - as you are their landlord, and you live in the premises - they are not covered by the 1988 Housing Act and can not have an Assured Shorthold Tenancy so issuing something that claims to be a tenancy agreement could cause confusion or aggravation. .......................
                    1. Can he throw you out? Well you can NEVER be thrown out without a court order. ........................

                    Surely (well, according to Shelter England) as "Excluded Occupiers" no court order required when landlord lives in the same property...
                    http://england.shelter.org.uk/get_ad...ed_occupiers#5

                    ??

                    Cheers!

                    Artful
                    I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

                    Comment


                      #11
                      Originally posted by Nimott View Post
                      There are some subletting contracts on the internet, which I downloaded and was intending to use for the two people, who have already moved in. I am still waiting for the rent payments, which they transfered online, and I have not received onto my account yet.
                      I agree with Snorkerz; under no circumstances issue the other occupiers with a random contract found on the internet.

                      I recommend you read through the Lodger Landlord website for more info on the legalities of lodgers (a.k.a. excluded occupiers).

                      http://www.lodgerlandlord.co.uk/

                      I have also set up a subletting agreement for them to sign, after I have received the rent, which both of them are paying all in advance.
                      And why have you let them move in before receiving rent in cleared funds?! By letting them move in and agreeing a rent you have already created a (verbal/oral) contract, which is just as valid as a written one.

                      Comment


                        #12
                        Originally posted by Snorkerz View Post
                        However, I would be suprised if the landlord could take any serious action - I can not see a section 8 eviction happening, expecially with the "and the landlord is not entitled to withhold that consent unreasonably" proviso. If you filled the house with 20 people, it might be reasonable to withold permission, however to refuse to allow the correct number of people for the rooms available would (imho) be unreasonable.
                        I think it could be reasonable to refuse if the extra occupants mean that it becomes a licensable HMO, given the extra expense/liabilities etc for the LL.

                        Comment


                          #13
                          Originally posted by theartfullodger View Post
                          Surely (well, according to Shelter England) as "Excluded Occupiers" no court order required when landlord lives in the same property.
                          Yes, but OP is a tenant - his proposed housemates would be excluded occupiers.

                          Originally posted by westminster View Post
                          I think it could be reasonable to refuse if the extra occupants mean that it becomes a licensable HMO, given the extra expense/liabilities etc for the LL.
                          Do lodgers count when assessing numbers for a HMO?

                          Acually, I have just found my own answer and discovered that 2 lodgers are okay, but 3 would bring in the issue of HMO. http://www.landlordzone.co.uk/blog/n...ows-hmo-ruling.

                          However, the above link mentions a HMO being for 3-6 people. If there are more than 6 (ie 4 tenants & 3 lodgers), how does this affect the situation?

                          Comment


                            #14
                            Originally posted by Snorkerz View Post
                            However, the above link mentions a HMO being for 3-6 people. If there are more than 6 (ie 4 tenants & 3 lodgers), how does this affect the situation?
                            No idea. All I know about HMOs is a vague mush of [lots of unrelated occupiers] + [HMO licence possibly needed] + [extra safety measures] + [something about three floors].

                            Comment


                              #15
                              Originally posted by westminster View Post
                              No idea. All I know about HMOs is a vague mush of [lots of unrelated occupiers] + [HMO licence possibly needed] + [extra safety measures] + [something about three floors].
                              Westminster, you disappoint me . Still, maybe one of our other hugely experienced members will be able to dish the dirt!

                              Comment

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