Secure tenant grants a subtenancy

Secure tenants can sublet part of the property with the written consent of the landlord and have an absolute right to take in lodgers.

This content applies to England

Rights to sublet secure tenancy

Secure 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, for example they move out out, the mesne tenancy is no longer a secure tenancy and cannot regain secure status even if the subtenancy is ended. [1]

Consent to sublet secure tenancy

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, they are in breach of the tenancy agreement and could face possession proceedings.[9] A secure tenant commits an offence if, in breach of an express or implied term of their tenancy, they sublet (or part with possession of) the whole of their social dwelling-house, or of part only without the written consent of their landlord, and ceases to occupy it as their only or principal home knowing that this is done in breach of the tenancy agreement, or dishonestly.

Last updated: 17 March 2021

Footnotes

  • [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).