Subletting without your landlord's permission
Subletting happens when an existing contract holder lets all or part of their home to someone else who is known as the sub-holder. The sub-holder usually has a contract for all or part of the property.
It’s unlawful to sublet your home without your landlord’s permission.
If you're not sure whether you’ve sublet your home
Taking in a lodger still counts as subletting, even if:
- you don't give them a contract for all or part of the property
- they're a friend or relative
It doesn’t count as subletting if a friend or relative has moved in with you temporarily, and you don’t charge them rent.
If you think you haven't sublet your home, you should explain that to your landlord.
If you’ve sublet your home unlawfully
Your landlord could take legal action against you. Unlawful subletting includes if you:
- need your landlord's permission before subletting all or part of your home but don't get it
- aren't allowed to sublet all or part of your home but you do so anyway
In these circumstances, you'll have broken a term in the written statement of your contract. If you break the rules of your contract, your landlord can take action to evict you.
Your landlord must give you a specific type of written notice to take possession of your home. This is called a ‘with grounds’ notice. The date your notice ends, your landlord has to apply to the county court for a possession order.
If you think your landlord was wrong to give you an eviction notice, you should contact them straight away and explain why.
Your landlord can also evict you without needing a legal reason - this is called a ‘no fault’ eviction. They have to give you an eviction notice which gives you 6 months to move out.
If your landlord is a council or housing association
You might be committing a criminal offence if you sublet your home when you’re not allowed to. Check if you’re allowed to sublet your home.
Local authorities can get information from organisations to help them investigate and prosecute unlawful subletting offences. For example, banks, building societies, telecommunications providers and utility companies.
The type of contract you have affects whether you can be prosecuted under criminal law.
If you have a local authority landlord
If you have a secure contract, you could be committing a crime if you sublet your home unlawfully.
The offences do not apply to you if you have an introductory contract or a prohibited conduct standard contract.
If you have a housing association landlord
If you sublet your home unlawfully, you could be committing a crime if you have either:
- a secure contract
- a prohibited conduct standard contract
The offences do not apply to you if you live in a shared ownership property where you buy part and rent part of your home.
There are 2 offences of unlawful subletting.
You have committed the first offence if you both:
- no longer live in the property as your main home
- sublet the property knowing that you were breaking your contract
The second offence is similar to the first one but you also have to have acted dishonestly when subletting.
This generally means that if you have made a profit from subletting your home then you're likely to have acted dishonestly. This is a more serious offence and carries greater penalties - for example, fines or going to prison.
You should get legal advice from a solicitor specialising in criminal cases straight away.
Prosecutions for the first offence must be made within 6 months of when the local authority decides there's enough information to start criminal proceedings.
If you need help with paying for legal advice, you might be able to get legal aid. Depending on your income, you could get free legal advice or you might have to pay towards the cost.
If you’re found guilty of a criminal offence
If a court finds you guilty of the first offence of unlawful subletting, you can be fined in the magistrates' court. There is no maximum fine.
You can be tried for the second offence of unlawful subletting and acting dishonestly at the magistrates' court or the Crown Court.
At the magistrates' court, you can get up to 6 months in prison or a fine, or both. At the Crown Court the maximum penalty is imprisonment for 2 years or a fine, or both.
Check if you have a defence
Unless you can convince the judge that you have not actually committed the offence you're charged with, there are limited defences.
For the first offence, you can defend your case if someone forced you to sublet your home by using violence or by threatening violence against you or a family member.
It's also a defence where the person living in the property is someone who would have been entitled to apply to the landlord or court for the contract to be transferred to them. For example, in the case of a relationship breakdown.
There is no defence to the second offence where there is dishonesty when subletting.
Unlawful profit orders
If you are found guilty of an unlawful subletting offence, the court can also make an ‘unlawful profit order’. This means you have to pay the landlord any profit you made from subletting.
The court can make this order instead of or on top of any fines or imprisonment.
Even if you're not being prosecuted for unlawful subletting under the criminal law, your landlord can still apply for an unlawful profit order as part of civil court proceedings.
The court will decide how much you have to pay. The maximum amount is based on the total profit you made minus any rent and service charges that you paid during the time when you sublet your home.
Interest is added if you don’t pay it on time.
If an order has been made against you in civil proceedings it will affect what you have to pay under an order made as part of any criminal proceedings. The order can only be for the amount of profit that is over what you have to pay under the civil order, or the amount which you haven’t paid under the civil order.
If your landlord is taking you to civil court
Your landlord is likely to apply for an unlawful profit order when taking other action in the civil court, such as possession proceedings to evict you for subletting your home.
Your landlord has to show the court that all the following apply:
- you have broken a term of your tenancy agreement by subletting all of your home - subletting part of your home also counts but if you are a secure or flexible tenant it only applies if you didn't get your landlord's written consent
- you no longer live in the property as your main home
- you received money as a result of the subletting
In practice, it's not always easy for a landlord to show that a property isn’t your main home. The court is likely to look at:
- any evidence there is of you living at another address
- whether you've left any of your possessions behind
- the arrangements you made with the people living in the property
The court will make a decision based on the facts of your case.
It's best to get some legal advice before the court hearing. Civil legal aid is not available in these circumstances but you may be able to get legal help from other sources.