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Subtenancy granted by secure tenant

This content applies to England

This section looks at whether a subtenancy granted by a secure tenant is lawful.

Secure tenants (local authority tenants or pre- 15 January 1989 housing association tenants) have an absolute right to take in lodgers (licensees) and a qualified right to sublet part of the property. If the tenant sublets the whole of the property, ie s/he moves out, the mesne tenancy will no longer be a secure tenancy and cannot regain secure status even if the subtenancy is ended. [1]

A secure tenant can sublet part of the property with the written consent of the landlord. That consent cannot be unreasonably withheld,[2] nor can it have conditions attached to it.[3] If the tenant asks for permission to sublet and the landlord fails to reply within a reasonable time, consent is treated as being withheld.[4] If permission is refused, written reasons must be given.[5] It is up to the landlord to prove that it is reasonable to withhold consent,[6] and the tenant may apply to the county court for a declaration that the withholding of consent is unreasonable.[7] When deciding whether to permit subletting, the landlord can take into account overcrowding and proposed works to the property.[8]

If the mesne tenant sublets without the landlord's consent, s/he will be in breach of the tenancy agreement and could face possession proceedings.[9] In addition, a secure tenant 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 of her/his social dwelling-house, or of part only without the written consent of her/his landlord, 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).

[1] s.93(2) Housing Act 1985.

[2] s.94 Housing Act 1985.

[3] s.94(5) Housing Act 1985.

[4] s.94(6) Housing Act 1985.

[5] s.94(6) Housing Act 1985.

[6] s.94(2) Housing Act 1985.

[7] s.110 Housing Act 1985.

[8] s.94(3) Housing Act 1985.

[9] Ground 1, Part 1, Schedule 2 Housing Act 1985 (this is a discretionary ground for possession).

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