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Subtenancy assured/assured shorthold tenant

This content applies to England

This section looks at whether a subtenancy granted by an assured/assured shorthold tenant is lawful.

It is a requirement of an assured tenancy that the tenant 'occupies the dwelling house as her/his only or principal home',[1] which means that assured status is likely to be lost if the whole of the property is sublet.

In addition, an assured/assured shorthold tenant of social housing commits an offence if, in breach of an express or implied term of her/his tenancy, s/he sublets (or parts with possession of) the whole or part of her/his social accommodation and ceases to occupy it as her/his only or principal home knowing that this is done in breach of the tenancy agreement, or dishonestly (see the page Social housing fraud for more on this).

Periodic tenancies

With two exceptions, it is an implied term in all periodic assured tenancies that subletting of all or part of the premises without the landlord's consent is prohibited.[2] Refusal of consent can be for any reason and, unlike secure and regulated tenancies, does not have to be 'reasonable.[3]

The two exceptions to this rule only apply to contractual assured periodic tenancies (ie not to statutory tenancies, which are the type of tenancy that automatically arise after a fixed term tenancy).[4] The exceptions are:

  • where there is a term in the tenancy prohibiting or permitting subletting (absolutely or with the landlord's consent)[5]
  • where the tenant was required to pay a premium on the granting or renewal of the tenancy, for example a tenancy deposit that is greater than one-sixth of the annual rent is a premium.[6]

For tenancies that come within this exception, the position is as follows:

  • where there is an absolute prohibition, subletting is not allowed
  • where there is absolute permission, subletting is allowed
  • where there is conditional permission or prohibition, the landlord must not unreasonably refuse consent.[7]

Fixed term tenancies

The Housing Act 1988 does not regulate the subletting of fixed-term assured tenancies, therefore a fixed-term tenant may sublet unless the tenancy agreement prohibits it. If the fixed-term tenancy prohibits subletting without the landlord's consent, consent cannot be unreasonably withheld.[8]

Consent

Where there is a qualified prohibition against subletting and the tenant makes a written request for permission, the landlord must reply within a reasonable time and give written reasons for any refusal or any conditions attached to the consent.[9] If the landlord does not comply then, as with subtenancies granted by a regulated tenant (see the page on subtenancy by regulated tenant for details), the tenant would need to apply to the court for a declaration, as to go ahead with the sublet without permission would be unlawful.

[1] s.1 Housing Act 1988.

[2] s.15(1)(b) Housing Act 1988.

[3] s.15(2) Housing Act 1988.

[4] s.15(1) and (3) Housing Act 1988.

[5] s.15(3)(a) Housing Act 1988.

[6] s.15(3)(b) Housing Act 1988.

[7] s.19 Landlord and Tenant Act 1927.

[8] s.19(1) Landlord and Tenant Act 1927.

[9] s.1-3 Landlord and Tenant Act 1988.

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