Tenant subletting without consent

ncooper1974

Looking for advice on a situation that I have not experienced before.

Tenant moved into my flat in Jan 2013 on a 1 year AST. Deposit protected. Rent paid on time every month. In Jan 2014 tenancy went periodic.
Roll forward to approx Sept 2014, and I got complaint from a neighbour downstairs about my tenant making excessive noise. During various emails between myself, tenant, neighbour downstairs and estate managing agents, allegations were made that my tenant was subletting my flat. I investigated this the best I could (called electric company and local council to find out who was the account holder - and neither could help me as there were not permitted to discuss the account even though I was the landlord). I even visited the tenant twice, and each time I couldn’t see any evidence that it was being sublet. The estate management effectively left it up to met to pursue and offered no help in the matter.

Roll forward Jan 2015, and tenant says he is leaving 3rd Mar 2015. I am away on holiday 3rd, so ask if I could come round a few days early for pre check out. He refuses. I then ask that he leaves the flat as agreed on 3rd and posts keys thru letter box, and I will collect keys and inspect flat on my return. I went to the flat yesterday (8th March) and instead of finding an empty flat there is a family of 4 living there. It took some convincing that I was the landlord (showed them the original AST where I was the landlord and my tenant was indeed the tenant). Turns out that people suspicions about him subletting were true and the family now residing had a 1 year AST from September 2014, clearly showing my tenant as the landlord! They even paid him £2k as a deposit!

What can I do now?
The flat looks clean and the family seem like decent people. I might be happy for them to stay on, subject to me carrying out the necessary referencing, and collecting a security deposit
But not sure what to do regarding the deposit I hold for my original tenant - do I give it back? Even though my tenant is not living there, do I still actually have a contract with him?
I don’t want to acknowledge the tenant with the family as until they have passed referencing I don’t want to accept them as tenants.
Need help please on the best way forward.

As a side note, when my tenant said he was leaving I served a s21 just to make sure. This notice expires on the 4th April 2015.

Thanks

theartfullodger

As your tenant was not living there any more it was no longer an AST so s21 invalid.

The occupants are legal tenants: Suggest you contact your landlord association for advice.

ncooper1974

But at the point I served notice, I had no reason to believe he wasn't living there.

When I originally spoke with the NLA about serving notice, I did mention about the possibility that the flat was being sublet, but they said that my contract is with the tenant (original tenant) and therefore the s21 would still be valid.

I'll give the NLA another call later to discuss further...

Voyager2002

theartfullodger wrote: »

The occupants are legal tenants: Suggest you contact your landlord association for advice.

How can they be legal tenants? They do not have a contract with the owner of the property. Essentially they are victims of fraud.

jjlandlord

ncooper1974 wrote: »

I'll give the NLA another call later to discuss further...

I would suggest that you seek a professional for advice.
Either a reputable firm specialised in evictions, or a solicitor specialised in the field.

My (limited) understanding is that you should probably be able to get rid of your tenant by notice to quit.
You would also be able to go after your ex-tenant for all your costs, but don't hold your breath too much.

ncooper1974

Thanks JJ, but I always thought that the NLA were professionals?

fed_up_and_stressed

Legal position is clarified here http://www.adviceguide.org.uk/england/housing_e/housing_renting_a_home_e/housing_subletting_and_lodging_e/housing_subletting_e/what_happens_if_a_subtenancy_is_unlawful_.htm

G_M

Voyager2002 wrote: »

How can they be legal tenants? They do not have a contract with the owner of the property. Essentially they are victims of fraud.

They have a tenancy with their landlords.

The fact that their landlords have sublet in contravention of their tenancy agreement does not affect the occupants' tenancy.

To be honest I don't know the procedure for evicting the sub-tenants in this case. Get professional advice. Meanwhile

* do NOT refund your tenants' deposit. Write to them and say that as they have not returned the property to you with vacant possession you are witholdig the deposit. I doubt they will contest this especially if they have the sub-tenant's deposit.

* IF the sub-tenants leave, do not refund their deposit either - that is a matter between them and their landlord (your tenant).

* If you decide to grant the sub-tenants a tenancy yourself (after vetting), take a deposit! They, of course, will be unhappy about this since they have already paid one. But that is a matter between them and the person they paid it to. Don't get involved in that, and treat any tenancy you grant them as new, in the normal way.

Let us know how you get on.

jjlandlord

ncooper1974 wrote: »

Thanks JJ, but I always thought that the NLA were professionals?

There is a difference between a helpline giving general advice and someone who actually knows his way around tricky cases.

Note that according to the link posted by 'fed up and stressed' the current occupiers may have to leave if you get a possession order against your tenant.

G_M

ncooper1974 wrote: »

....

Roll forward Jan 2015, and tenant says he is leaving 3rd Mar 2015.

How? Did he:

a) give you valid notice? ie one month+ ending with a tenancy period since the tenancy was periodic?

b) write a letter asking to surrender and requesting your agreement?


If a) the Head Tenancy ended, and so did the sub-tenancy.

If be) the Head tenancy ended and the sub-tenants became tenant of the Head landlord.

As per "fedupandstressed's" shelter link:

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.

jjlandlord

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.

I would be EXTREMELY careful before taking this at face value, and certainly wouldn't do anything without proper legal advice.

Indeed, it does not seem to tally with the Protection from Eviction Act 1977.