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Unlawful subletting of social housing – unlawful profit orders

This advice applies to Wales

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.

If you are found guilty of unlawful subletting, the court can make an unlawful profit order. This is an order which requires you to pay your landlord any profit you made from the subletting. 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.

This page gives more information on unlawful profits orders in both criminal and civil proceedings.

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.

Unlawful profit orders as part of criminal proceedings

What are the criminal offences of unlawful subletting of social housing?

There are two types of offences you can commit by unlawfully subletting your home. Generally, the first offence is where you no longer live in social housing as your main home because you have sublet it and you know that is against your tenancy agreement.

The second offence is where you’ve acted dishonestly when subletting, for example, by making money from it. This is a more serious offence with greater penalties.

Who decides whether or not to make an unlawful profit order?

If you are found guilty of unlawfully subletting your home, the court will decide whether or not to make an unlawful profit order. This is an order which requires you to pay your landlord any profit you made from the subletting.

The court can make this order instead of, or on top of, other penalties, which are fines, imprisonment or both.

If the court decides not to make an order it must give its reasons why.

Working out how much is payable under an unlawful profit order

The court will decide how much is payable under an unlawful profit order. The maximum amount that can be paid is based on the total profit minus any rent and service charges that you paid during the time when you sublet your home.

Interest is added if the amount due is not paid on time.

It's also possible for your landlord to get an unlawful profit order as part of legal action in the civil court - see below. If an order has been made against you in these circumstances, then this will affect the amount payable under an order made as part of any criminal proceedings. In this case, the order can only be for the amount of profit that exceeds the sum payable under the civil order, or the amount which the landlord has failed to recover under the civil order.

Unlawful profit orders as part of civil proceedings

Whether or not you get an unlawful profit order made against you in the criminal court, your landlord can still apply for one in the civil court. The civil court will be the county court or the High Court.

Your landlord has to show the court that:

  • 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 received money as a result of the subletting.

In practice, it's not always easy for a landlord to show that a property is no longer a tenant's only and principal home. The court is likely to look at any evidence there is of you living at another address, whether you have left any of your possessions behind, and the arrangements you made with the people living in the accommodation. The court will make a decision based on the facts of your case.

Working out how much is payable under an unlawful profit order

The court will decide if an order should be made and if so, how much it is for.  

The maximum amount that can be paid is based on the total profit minus any rent and service charges that you paid during the time when you sublet your home.

If an unlawful profit order has already been made against you as part of criminal proceedings, then this will affect the amount payable under an order made as part of any civil proceedings. In this case, the order can only be for the amount of profit that exceeds the sum payable under the criminal order, or the amount which the landlord has failed to recover under the criminal order.

When is your landlord likely to apply for an order in the 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.

What should you do if your landlord is applying for an order in the civil court?

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.

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