Case Study
Squatters Rights
Tuesday 24th June 2008
It is an implied term of every Assured Tenancy or Short Assured Tenancy that the tenant will not wholly or partially assign the tenancy or sub-let the tenancy. However, a landlord and a tenant can agree in the terms of the tenancy agreement to provide that assignation or sub-letting will be allowed with the prior written consent of the landlord. Most Assured and Short Assured Tenancies will specifically prohibit assignation or sub-letting without the prior written consent of the landlord at the very least and at the most will prohibit it without any qualification. The Letwise model Short Assured Tenancy prohibits assignation and sub-letting in Clause 16.
So what do you do if you are a landlord who then discovers that your tenant has illegally assigned or sublet a tenancy to somebody without your knowledge or consent?
Firstly, you could insist that your own tenant ends the sub-tenancy with the illegal sub-tenant. The difficulty of course is that if your tenant refuses to do so, probably because he is making a huge amount of profit from illegally sub-letting, you are left in a position where you really need to consider taking action against your own tenant for his breach of the tenancy agreement by illegally sub-letting or assigning the tenancy.
It is important that you as a landlord take action sooner rather than later. Arguably an unlawful sub-tenancy might be deemed to be legalised if, after you have discovered the legal sub-tenant, you continue to accept rent from your tenant regardless, without attempting to place pressure on your tenant to bring the sub-tenancy to an end.
If you require to take steps to bring the tenant's tenancy to an end, you will have to serve the requisite notices depending on whether the tenancy is an Assured or a Short Assured Tenancy. Advice in this regard can be obtained on www.edinburgh.gov.uk/letwise .
What you cannot do as a landlord is take your own action to evict the sub-tenant. The legal relationship with the sub-tenant remains with your own tenant. You can however take action against your own tenant.
What you should also not do, is take steps to have the illegal sub-tenant "evicted", for example, by changing the locks whilst they are out and preventing them from getting back into the property. If you do so, you could be held liable and charged with a criminal offence of unlawful eviction or unlawful harassment. You should also not remove the sub-tenant's belongings. If you do so without any authority from the sub-tenants, you could face a claim for compensation to cover any damage or theft of the belongings caused by your actions.
Accordingly, if you do discover illegal sub-tenants in your property, you should take the appropriate advice which will probably result in you taking the necessary steps to properly and legally terminate the Head Tenancy between yourself and your tenant. Which will then automatically bring to an end any illegal sub-tenancy and will, once you have obtained the order of the court, allow you to evict all tenants including illegal sub-tenants from your property.
In those rare situations where there is a lawful sub-let, you might want to consider the terms of Section 28 of the Housing (Scotland) Act 1988. Section 28 states that where an Assured Tenancy (or a Short Assured Tenancy) is terminated by order of the court and there is a legal sub-tenant in occupation, then the sub-tenant automatically becomes the tenant of you on the same terms as the
sub-tenant held from the tenant. In other words, if you have consented to the sub-tenancy and you then decide to bring the principal tenancy with your tenant to an end, the lawful sub-tenant will then become your lawful tenant on the same terms of conditions as he or she had with your own tenant. A word of caution therefore for any landlords that are thinking of lawfully sub-letting, always check the terms of the sub-tenancy agreement!
Letwise provide support and tools for private tenants, landlords and letting agents in Edinburgh. Their aim is to improve and maintain the quality and management of private rented housing in the city of Edinburgh and help encourage the growth of diverse thriving communities.