What happens if a subtenancy is unlawful?

What is subletting?

Subletting happens when an existing tenant lets some or all of their home to another tenant who becomes the subtenant.

In this situation, the property owner is known as the head landlord. The tenant they rent to is called the 'mesne' tenant. Mesne means intermediate and is pronounced as 'mean'. The mesne tenant who rents their home to the subtenant creates a subtenancy and the subtenant has exclusive use of the accommodation. This means that the landlord can only enter the accommodation with the subtenant's permission.

Being a subtenant is different to being a lodger.

• More about lodging

What happens if a tenant who is not allowed to sublet their home does so anyway?

If you're a subtenant and don't share any accommodation with your landlord, how your landlord went about subletting their home can matter to you.

If they weren't allowed to sublet because their tenancy agreement said they couldn't, or if they didn't get their landlord's permission beforehand when they should have done, this means that the subletting itself is unlawful.

However, even if the subletting is unlawful this doesn't affect your tenancy. Your tenancy is valid because your landlord, who is the mesne tenant, created a tenancy - your subtenancy. This brings about a relationship of landlord and tenant between you and them.

You lawfully occupy the property under the subtenancy until:

• your landlord decides to end your tenancy in the proper way, or
• your landlord's tenancy comes to an end.  

The legal process that your landlord has to follow to give you notice and to evict you depends on the type of tenancy you have. Many subtenants who do not share any accommodation with their landlord will be assured shorthold tenants. However, you should always check what type of tenancy you have first as this affects the type of housing rights that you have.

• More about your right to stay in your accommodation

• More about checking what type of tenancy you have – Shelter Cymru at www.sheltercymru.org.uk

What happens if your landlord's tenancy ends?

If your landlord wasn't allowed to sublet their home but did so anyway, they're likely to have broken their tenancy agreement.

If their landlord, the head landlord, takes possession proceedings against them because they've broken their tenancy agreement and they are evicted, this will affect your right to stay in the accommodation.  

Generally, when a mesne tenancy ends, the subtenancy also ends and the head landlord is entitled to get the accommodation back with no-one living it. There are however, some exceptions to this. The main exceptions are:

• if the head landlord agrees to the subtenancy in some way, or
• where the mesne tenancy ends with the head landlord's agreement. This is called surrender.

The head landlord agrees to the subtenancy

In some circumstances, you may be able to get the head landlord to agree to you staying on as their tenant. If this happens, you'll sign a new tenancy agreement. The head landlord would then become your immediate landlord and you would be their tenant.  

You may also be able to show that the head landlord has agreed to your subtenancy because they've accepted rent directly from you. By accepting rent, the head landlord accepts that you have the right to occupy the property. If you're in this situation, you'll probably need the help of an adviser.

Another way that a head landlord can agree to a subtenancy is if they become aware that unlawful subletting is taking place, but they don't do anything about it, for example, they continue to accept the rent. However, it may not always be easy to show that a landlord knew about the subletting.

The mesne tenancy ends with the head landlord's agreement

Surrender is an agreement between a landlord and a tenant that the tenancy is given up. When a tenancy is surrendered, the landlord takes back the property subject to any rights and tenancies or licences created by the outgoing tenant.

This means that if your landlord surrenders their tenancy, you would become the direct tenant of the head landlord. This would be the case even if the subletting was unlawful. In these circumstances, your tenancy would continue on the same terms as your existing tenancy agreement.

Evicting you if your landlord's tenancy ends

If your landlord's tenancy ends and none of the circumstances explained above apply to you, the head landlord can evict you quite easily. In these circumstances you're regarded as a trespasser and the head landlord doesn't need a possession order to evict you, but they can get one if they choose.

If the head landlord is a council or housing association, they shouldn't really evict you without giving you some time to make alternative arrangements, particularly if you didn't know that the mesne tenant had broken their tenancy agreement by subletting to you.