Rights of unauthorised subtenants case study

A case study on the housing status of someone who rents from a tenant, and what protection they have from eviction by the property owner.

An unexpected visitor

It's a common enough scenario. A person looking to move to a new home finds a flat to rent through a website containing adverts from private landlords. The prospective tenant meets their new landlord, signs a tenancy agreement, and sets up a monthly standing order with their bank to pay the rent.

The tenant moves in and hears nothing more from their landlord.

Six months later, someone else turns up at the property, claiming to be the owner. The person the occupier met and has since paid rent to is their tenant, who is subletting the property without permission.

The owner tells the tenant to leave by the end of the week.

The tenant attempts to contact the original landlord, but texts and emails go unanswered. A letter is returned undelivered. An online Land Registry search shows the named owner is the person who recently visited.

Unsure what to do next, the tenant seeks advice about their rights to remain in the property.

Identifying the characters

Advising the tenant requires an examination of the relationship between the owner, or head landlord, mesne tenant, and subtenant.

Mesne (pronounced mean) is not a word normally encountered outside property law. It comes from Norman French, meaning intermediate or intervening.

In this case study, the head landlord is the freehold owner of the property.

No eviction without court action

The starting point for any eviction case is to establish whether the landlord must go to court before evicting an occupier. Tenants and most licencees are entitled to a court order.

The owner cannot force this tenant to leave the property without a possession order and bailiff's warrant from the court.

The Protection from Eviction Act 1977 sets out the types of occupiers not protected by the right to a court order. They are sometimes called excluded occupiers because they are excluded from protection from eviction.

This subtenant is in 'lawful occupation' as a tenant of the mesne tenant. They do not fall into any of the categories of occupiers excluded from protection from eviction. They need not vacate by the end of the week.

The owner can ask the tenant to leave, but harassing them, changing locks, cutting off utilities, or removing them from the property by other means is a criminal offence.

How the owner can end the mesne tenancy

The owner must create a legal relationship with the subtenant before they can take steps to evict them.

The owner has a contract with the mesne tenant, and the mesne tenant has a contract with the subtenant. There is no contract between the owner and the subtenant.

The owner must end the mesne tenancy to remove the mesne tenant and create a direct legal relationship with the subtenant.

The mesne tenant is not excluded from protection from eviction either, so the owner must follow court processes to end their tenancy. That might be fairly straightforward. Most residential tenancies include a condition that the tenant must live there as their only or principal home, so the mesne tenant has breached the terms of their tenancy.

Mesne tenant loses Housing Act protection

A mesne tenant not residing in the property loses their statutory tenancy status. They are left with a contractual tenancy without the protection of the Housing Act.

The mesne tenant is entitled to a court order, but the landlord does not have to follow the section 21 process or use a ground for possession.

For a fixed-term tenancy, the owner could exercise a break clause if there is one, or wait until the end of the term. For a periodic tenancy, the owner could end it by giving notice to quit.

Subtenant's rights to remain in an unauthorised tenancy

The mesne tenant sublet the property in question without the owner's permission. That leaves the subtenant in a precarious position once the mesne tenancy ends.

The subtenant's rights to remain in the property depend on how the mesne tenancy ends. Subtenants have more rights if the mesne tenancy was surrendered, rather than ended by notice or at the end of a fixed term.

If the mesne tenancy was surrendered

The subtenancy becomes binding on the owner if the mesne tenancy is surrendered. The owner steps into the shoes of mesne tenant and becomes the subtenant's direct landlord. This is a good outcome for the subtenant because they keep their tenancy status.

A surrender is an agreement between the parties that the tenancy has ended. The owner seeks no further rent, and the mesne tenant agrees to vacate the property and not return. A well-informed owner might not agree to surrender in this situation because of the extra security it affords the subtenant.

Evidence of an agreement to surrender

This is where finding out what happened can become a challenge. The agreement to surrender might be in writing or even executed as a deed, in which case there might be paperwork the subtenant can refer to. More likely there is no documentation, at least that the subtenant is allowed to see.

Verbal or implied agreements to surrender are equally valid, though harder to prove. But, if the owner admits to the subtenant that the mesne tenancy has ended and asks them for rent, the courts might infer a surrender from that conduct.

If the case does end up in court, the owner and mesne tenant could be forced to reveal not just documents, but text messages and emails, through a process called disclosure.

New landlord's responsibilities to the subtenant

As the new landlord of the subtenant, the owner has all the usual responsibilities, like dealing with disrepair at the property.

The owner must follow the legal processes if they want to end the subtenancy. They could issue a section 21 notice for an assured shorthold tenancy or issue a notice setting out grounds for possession.

If the mesne tenancy ends by notice or fixed term expires

An unauthorised subtenancy is not binding on the owner if the mesne tenancy ends because the mesne tenant or owner served notice to quit, or the fixed term ended.

Section 3 of the Protection from Eviction Act sets out when a court order is needed to evict an occupier. It does not apply to unauthorised subtenancies after the mesne tenancy ends because the subtenant is not in lawful occupation.

If the mesne tenancy ends by valid notice, or at the expiry of the fixed term, the owner could evict the subtenant without a court order.

Evicting the tenant without going to court is risky for the owner. If the subtenant can find evidence that the mesne tenancy was surrendered, the owner would have committed the offence of illegal eviction and could face prosecution.

If the owner had authorised the subtenancy

An authorised subtenant can only be evicted with a possession order and warrant from the court. They are covered by section 3 Protection from Eviction Act because they are in lawful occupation of the property when the mesne tenancy ends.

The subtenant becomes the direct tenant of the owner whether the mesne tenancy ends through valid notice, surrender, or at the end of a fixed term.

The mesne tenant simply disappears from the equation.

How the owner can authorise a subtenancy

In the scenario outlined above, the owner had plainly not authorised the sublet. Other cases might not be so clear cut. The mesne tenant's written agreement might allow them to sublet the premises, or the landlord might have given permission another way. Texts and emails can be evidence that permission was granted.

The owner might deny having authorised the sublet. The person with evidence that permission was given is likely to be the mesne tenant, so subtenants are well advised to contact them quickly where possible.

How tenants can protect themselves from unauthorised subtenancies

The rent to rent sector is growing fast. People can make large profits subletting premises, especially in areas of high housing demand.

A subtenancy is generally best avoided for people seeking a longer-term or permanent home because of the difficulties faced by subtenants who need to take action against their landlord to get repairs done or enforce other property standards.

A subtenant whose tenancy is not authorised can lose their statutory security of tenure when the mesne tenancy ends.

There are some straightforward steps a prospective tenant can take to protect themselves, even if their situation forces them to sublet.

Find out who owns the land

A Land Registry title search shows the owner of any registered property for around £3. Almost ninety percent of land is registered, including almost all residential property.

If the named owner is different from the landlord, the tenancy could be a sublet.

Ask for proof of the head landlord's consent

People who know they are renting from a mesne tenant can ask for proof the owner has given permission, and get a copy if possible. This will help prove the tenancy is authorised in case of a dispute.

Beware of sham agreements

Prospective tenants should ask for a copy of their tenancy agreement to check it doesn't try to limit their rights. For example, by stating it is a licence when it's really a tenancy.

Although it doesn't alter the person's legal rights, in practice it's a warning sign that the landlord will try to avoid their legal obligations.