Subletting without your landlord’s permission
If you sublet your home when you’re not allowed to, your landlord is likely to take action to evict you.
If you’re a social housing tenant, the consequences are more serious because you might also be committing a criminal offence.
You can check if you’re allowed to sublet your home.
If you're not sure whether you’ve sublet your home
If you’ve taken in a lodger you might be subletting, even if your lodger is a friend or relative. It's subletting if both of the following apply:
- you charge them rent
- you agree not to go into their room or another space you’ve given them
If you think you haven't sublet your home, you should explain that to your landlord.
It’s best to have your landlord’s permission to get a lodger - they might try to evict you if they find out you got a lodger without telling them. You can check our advice about taking in a lodger.
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 your tenancy agreement - your landlord can take action to evict you.
Your landlord must follow a specific legal process to evict you depending on the type of tenancy that you have.
Your landlord has to give you some form of written notice that tells you they’ll take possession of your home. When the notice expires, your landlord has to apply to the county court for a possession order. A possession order allows your landlord to evict the subtenant and stop you from moving back in.
If you think your landlord was wrong to give you an eviction notice, you should contact them straight away and explain why.
You can:
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. You can check if you’re allowed to sublet your home.
Local authorities can get information to help them investigate and prosecute unlawful subletting offences - even if they aren’t your landlord. For example, from banks, building societies, telephone providers and utility companies.
The type of tenancy you have affects whether you can be prosecuted under criminal law.
If you have a council landlord
You’ll be committing a criminal offence if you sublet unlawfully with a secure or flexible tenancy.
The offences don’t apply to you if you have an introductory tenancy, a demoted tenancy or a family intervention tenancy.
If you have a housing association landlord
You’ll be committing a criminal offence if you sublet unlawfully with:
- an assured tenancy
- an assured shorthold tenancy
- a secure tenancy
The offences don’t apply to you if you live in a shared ownership property where you buy part and rent part of your home. The offences don’t apply if you have a family intervention tenancy.
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 made a profit from subletting your home, you're likely to have acted dishonestly.
The second offence is more serious and has bigger 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.
You can find out more about free or affordable legal help.
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 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 you paid during the time you sublet your home. Interest is added if you don’t pay it on time.
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, like 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 your home
- 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 belongings behind
- the arrangements you made with the people living in the property
It's best to get legal advice before the court hearing. Civil legal aid is not available in these circumstances but you might be able to get legal help somewhere else.