Unlawful subletting of social housing - criminal offences
Certain tenants living in social housing may be committing a criminal offence if they sublet their home without their landlord's permission or by going against what it says in their tenancy agreement.
Unlawful subletting of social housing is a serious matter because as well as the risk of being prosecuted under criminal law, you could also lose your home.
This page gives more information on the criminal offences of unlawful subletting and the penalties you could face if you are found guilty.
Does this apply to you?
The offences of unlawful subletting don't apply to you if you:
- have a family intervention tenancy, or if you have an introductory or a demoted tenancy with a local authority landlord
- live in a shared ownership property where you buy part and rent part of your home
- have a private landlord.
What type of tenancy do you have?
The type of tenancy you have affects whether you can be prosecuted under criminal law for unlawfully subletting your home.
If you have a local authority landlord
If your landlord is a local authority, the criminal offences of unlawful subletting apply to you if you have a secure tenancy. In England, they also apply if you have a flexible tenancy.
The offences do not apply to you if your landlord is a local authority and you have an introductory tenancy, a demoted tenancy or a family intervention tenancy.
If you have a housing association landlord
If your landlord is a housing association, the criminal offences of unlawful subletting apply to you if you have a secure, assured, assured shorthold or a demoted assured shorthold tenancy.
The offences do not apply to you if live in a shared ownership property where you buy part and rent part of your home. Nor do they apply if you have a family intervention tenancy.
What are the offences of unlawful subletting?
There are two offences of unlawful subletting. You will have committed the first offence if:
- 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, and
- you no longer live in the property as your only or principal home, and
- you sublet the property knowing that you were breaking your tenancy agreement.
The second offence is similar to the first one. The main difference is that for the first offence it is enough for someone to know that subletting is against their tenancy agreement, the second offence requires the person to have acted dishonestly when subletting. This generally means that if you have made money from subletting your home then you're likely to have acted dishonestly. This is a more serious offence and carries greater penalties.
There are other criminal offences which are connected to the unlawful subletting of social housing. For example, where someone has helped you or conspired with you to commit an offence.
What are the penalties for the offences?
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 six months in prison or a fine, or both. At the Crown Court the maximum penalty is imprisonment for two years or a fine, or both.
Unlawful profit orders
If you are found guilty of either of the unlawful subletting offences, the court can also make an unlawful profit order. This requires you to pay the landlord any profit you made from the subletting.
Is there 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 tenancy 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.
Who can prosecute for the offences?
Local authorities can prosecute for unlawful subletting of social housing. The local authority doesn't have to be the landlord of the property, nor does the property have to be in that local authority's area.
Powers to get information
Local authorities can require organisations to provide information to help them investigate and prosecute unlawful subletting offences. This includes the power to require information from organisations such as banks, building societies, telecommunications providers and utility companies.
Time limits to take prosecutions
Prosecutions for the first offence must be made within six months of when the local authority decides there's enough information to start criminal proceedings.
There's no time limit for taking prosecutions under the second offence.
What you should do if you're being prosecuted for unlawful subletting
As unlawful subletting of social housing is a criminal offence, you should get legal advice from a solicitor specialising in criminal cases straightaway. If you need help with paying for legal advice, you may be able to get legal aid. Depending on your income, you may be able to get free legal advice or you may have to pay towards the cost.
Other action your landlord can take
As well as the risk of being prosecuted under the criminal law, your landlord may take legal action against you in the civil court if you sublet your home unlawfully. For example, if you've broken a term in your tenancy agreement your landlord can start possession proceedings to evict you. They can also seek an unlawful profit order which requires you to pay the landlord for any profit you made from the subletting.
Other useful information
- More about checking what type of tenancy you have - Shelter at www.shelter.org.uk