I have just found out that my 2 bed flat is being illegally sublet to three single guys and the lady I actually rent to has been refusing to pay rent for just over two months now and obviously has no intention of paying her arrears. She is obviously still raking it in from the illegal sublet. Why is this not theft and fruad?! Hopefully it actually is?
I have served a section 8 which is being ignored. I need to get the rent arrears back and them out, but having done a bit of research, it seems people are only bothered if it was a social housing property as opposed to a private one…
She is not living there.
There is an explicit prohibition on subletting in her AST.
We discovered this on Friday when a technician went in to do an EPC (which we had just discovered was out of date). This is after a couple of months of her being very adamant about leaving her in peace and refusing access for normal inspections and being constantly late and then just refusing to pay rent.
I don’t know if the local Authority (Wandsworth) requires a licence?
I am really struggling to see how it is not illegal. She is stealing from me (by gaining income from my asset and choosing not to pay me) and has done it through untruthful behaviour and false information. If I did that to a bank, I’m sure I’d get in a lot of trouble very quickly…
Thanks for the idea regarding HMRC, will definitely pursue that.
If there is no possibility that she will return to the place then you can end her tenancy with a common law Notice to Quit, provided its allowed by your tenancy agreement, (most do). As subletting is not allowed and you normally inspect to check, the current occupants would not have a lawful tenancy and would lose their right to be there when hers expires. You should consult a landlord and tenant solicitor about whether its safe to just exclude them from the property once her notice expires or whether you should get a court order. Dont accept or demand any rent from the sub-tenants.
If she returns to live there during your notice come back for more help.
What your tenant is doing is not illegal because its not breaking any specific law. However, it is unlawful, (theres a difference) because its a breach of civil law. That means the remedy is in your hands and you can sue her for the unpaid rent.
Thanks again for your reply and advice. It is really appreciated! By a common law notice to quit, do you mean a section 8 or similar? Or is it something else? Sorry I am trying to learn quickly as we navigate this.
We just got a utilities bill today which has gone unpaid since the start of the tenancy… surprise surprise.
In terms of suing her, my guess is she is just going to disappear as soon as we let on that we know she is subletting etc. Any suggestions for how best to keep track of her / up our chances of getting the unpaid rent back?
I’ve been in touch with the council to report her as it goes into HMO territory as you said, so thank you for letting me know about that.
No, s8 and s21 are only for assured and assured shorthold tenancies. A tenancy ceases to be assured if the tenant is not living there, so you can use a basic Notice to Quit which unlike their assured counterparts will end the tenancy if she doesn’t return.
The utilities bill is not your concern provided you closed your own account and gave the supplier the tenants details when they moved in.
If you are not a member of the N R L A or similar association then you are taking a big risk managing a tenancy yourself. Its very legally complex. They have an advice line and all the documents you require. They may advise you to serve a s8 or s21 as they tend to only provide basic advice, so you will still need advice from a housing solicitor about the NtQ option.
If the Council tell you that you must apply for an HMO licence, ask them for a Temporary Exemption Notice on the basis that you are in the process of evicting the tenant and occupants.
How does the LL know and prove that she is not living there? For example, if you serve notice to quit and then she claims that she was still living there could that cause issues?
Yes, it would cause issues if there was no evidence that she was not living there. There is some risk with this approach, which is why I suggested the solicitor. However, the reason I mentioned it is that the alternative s8/s21 eviction process would mean the best part of a year without rent.
So in terms of knowing she’s not there, and I understand this would be a difficulty in different situations, the guy who carried out our EPC said the lounge had been converted to a bedroom and there where three single guys living in the flat. Obviously he had to check every room for the certificate. He could sing a statement if needed. The owner of the flat above and below have never ever seen the ‘tenant’ lady we rented to, but have seen these guys since October. The owner of the top floor flat has just put in a ring doorbell equivalent, so I would guess there is video of these guys coming in and out, and no sign at all of the ‘tenant’ we leased too. There are none of her possessions in the flat it seems, so surely all of that would be enough proof she is not living there. We also have an address for her, not that she gave but that referencing found, which I would guess is her true residence.
I spoke to a lawyer (paraleagal) regarding the notice to quit, she seems to think it would take just as long as the section 8 that we have already served and that we would still need to go to court after the expiry of the 4 weeks for the notice to quit. I said to her, does it not end the tenancy automatically at the expiry of the notice considering she is not living there. She was adamant that we would still have to go to court to get a possession order…?
She doesn’t live there, she unlawfully sublets it, she does not pay rent for it (yet takes the profits she is making) and she is not paying any bills for it, I really cannot believe she has any rights to the property at all!
Well the paralegal may be right that you would need a court order to remove the sub-tenants once the mesne tenancy ends, but you would not need to serve them notice and the court order would be for trespassers so I think should be quicker than a s8 claim.
The usual advice in this circumstance is to serve both a s8/s21 notice AND a Notice to Quit to cover all bases. The mesne tenant could otherwise turn the tables on you and defend your s8 claim as invalid due to their tenancy no longer being assured.
Thanks David. Think we will issue the notice to quit too to cover bases as you say.
The real difficulty now is, it sounds like the subtenants know they need to leave and the thief in the middle has told us ‘she’ will vacate on or before the 30th April. Do we take her word on that? Then if she moves back in, enforce the section 8 and go to court. It seems like there is no way we would get a court date before then anyway. I know it’s a risk, but if she thinks she has gotten away with it, maybe she is never coming back and that is the quickest and cheapest way to get it back, then we persue her for the monies owed if we can find her…?