This is an interesting blog clinic question from Owen who is a tenant
I recently moved in to a property where I found out the landlord is not the mortgage holder. He himself is a tenant of the property and is subletting some of the rooms. He lives in the property with his family as well.
I have checked the Land Registry documentation to see who the actual owners are and my landlords name is not on that document and he is not a relation. Does this mean the sublet is illegal and any contracts issued under this is not valid?
When I called the mortgage lender, they informed me that under no circumstances would they ever allow subletting. At the most they would allow mortgage holders consent to let for circumstances such as when the owner moves abroad for a period of time. But under no circumstances would they ever allow them the tenant to further sublet the property.
I have since moved out of the property but I have not been able to get my deposit back as the supposed landlord is saying I broke my fixed term contract and I in fact owe him for the remainder of the agreement. Is he entitled to pursue the agreement or should I be in fact pursuing him for my deposit and maybe even the rent money I paid him?
The first point is – were you a sub tenant or a lodger? If you rented a room but shared living accommodation with the landlord and his family, then you would not have had a tenancy at all. You would have been a lodger (who has a license to occupy and not a tenancy).
However whether or not you had a license or a tenancy, the status of your landlord is not really your concern – as there is this weird legal rule which says that a tenant / occupier cannot ‘look behind his landlords title’.
So therefore far as a tenant or licensee is concerned, under the law you are not entitled to question your landlord’s title. I know that to many people this sounds bonkers, but once you sign a tenancy / license agreement you are bound by it – whether the landlord had the right to rent to you or not.
If the landlord had let in breach of his tenancy or mortgage deed, then it may be that your tenancy or license was vulnerable to being ended at short notice by the owner of the ‘headlease’ or perhaps the mortgage company, terminating your landlords tenancy.
However, unless and until that happened, the tenancy or license was legal.
Indeed it is technically quite possible for a squatter to grant a tenancy – which will be valid so far as the squatter and his tenant is concerned, even though it will not be binding on the land owner.
So I am afraid you are bound by the terms of your tenancy / lodger agreement and were not entitled to end it early, or refuse to pay the rent. Or reclaim the rent. And the landlord is entitled to claim the balance of the rent from you, depending on the precise terms of your contract or tenancy agreement (which of course I have not seen).
So this will be a legitimate claim on your deposit.
If, by the way, your agreement was in fact that a lodger (which I suspect it will have been) you will find a lot of information on my Lodger Landlord site.
I had a conversation the other week with my own ‘specialist L&T solicitor’. His opinion was that if the superior landlord evicted his tenant, then the sub-tenant would be removed by bailiffs if the tenant did not have permission to sublet. If the tenant did have permission to sublet, then that tenancy would transfer to the superior landlord.
It is a grey area, and one I have been looking at for some time – I asked the same Q of Ben some 12-18 months ago.
I dont recall my reply Dave but I think it would be the same now. I deal with a lot of unlawful council sub lets.
When the superior landlord, usually in my case the council or a housing association, find out, they serve a notice to quit, rather than the usual Section 8 or section 83, depending on the tenancy type,and when possession is granted it applies to all parties.
If the name of the sub tenant is known to the superior landlord then sometimes they will also name them in the proceedings, but not always.
It seems to be a bit of a double edged sword. If the subby is named then they are allowed to ask the court for more time which can be important if possession proceedings have only just become known to them but theoretically they can be liable for some of the costs although I have never known a judge levy such costs in practice.
If they arent named and they want to buy a bit of time they can ask to be joined to the proceedings anyway.
But basically when the main tenancy goes, so does the sub tenancy.
I’ve been in housing so long I can remember the recession of the early 1990s when many people unable to sell properties moved in with relatives and let their properties out without the lenders knowing and often hid possession proceedings from their tenants. We used to get about 2 cases every single week where families turned up having been woken by court bailiffs executing warrants. It became such a big national problem that the CML advised lenders to always write on possession correspondence the name of the borrower and “Any other occupiers” so that the post might get opened by the tenants. That is why you see this today as quite common practice.
In social housing sub lets often housing officers dont understand the law on it and tell sub tenants that they have no rights to remain, so occasionally you get council’s actually illegaly evicting people
Very well explained Tessa.
Clearly Owen assume way too many things and then proceeded to act based on unground assumptions. If he caused harm to the landlord I would think there could be a claim for further damages given the contact with the lender.
While I do not expect it applies, the concept behind data protection is similar. The use of private data to poke around to see what can be found is not well liked in Europe.
Thanks for your comment John. That is a good point about data protection which I had not thought of.