When renting out a property, one of the breaches landlords may be more concerned about is a tenant privately acting as a “second landlord” by subletting or renting out the whole or part of the property to others. If a landlord discovers that a tenant has been subletting in breach of the tenancy agreement, how should the situation be handled?
First, when renting out a property, the landlord should enter into a formal tenancy agreement with the tenant and complete stamping of the agreement by paying stamp duty. The landlord should also carefully check the terms of the tenancy agreement to ensure that it clearly states that, without the landlord’s written consent, the tenant must not sublet or rent out the whole or any part of the property to other persons.
It should be noted that if the tenancy agreement has not yet been stamped, it generally cannot be directly admitted as evidence in court or at the Lands Tribunal. Therefore, if the landlord did not previously arrange for the tenancy agreement to be stamped, the landlord will first need to pay the outstanding stamp duty and related penalties before taking subsequent legal action as appropriate.
However, before taking any action, the landlord should not immediately terminate the tenancy based solely on suspicion, but should first gather more concrete evidence. For example, screenshots of advertisements posted by the tenant on online platforms or social media offering the property for rent, records from the building management office, or information provided by neighbours may all serve as references when determining whether the property is involved in unauthorised subletting.
If sufficient evidence has been obtained, the landlord may first formally notify the tenant in writing, for example by sending a notice by registered mail, requiring the tenant to stop the unauthorised subletting within a specified period, or to terminate the tenancy and vacate the property in accordance with the terms of the tenancy agreement. The notice may also clearly state that if the tenant fails to take action within the specified period, the landlord will consider recovering possession of the property through legal proceedings.
If the tenant ultimately refuses to move out or ignores the notice, the landlord should not forcibly change the locks, cut off the water or electricity supply, or remove the tenant’s belongings without authorisation, in order to avoid incurring other legal liabilities. Generally speaking, the landlord will need to follow formal legal procedures to apply for recovery of possession of the property. The overall process can broadly be divided into the following three steps.
The first step is to make an application to the Lands Tribunal. The landlord will need to submit a completed Notice of Application and Notice to Persons in Actual Possession or Occupation (Form 22), the original and a copy of the stamped tenancy agreement, and other required documents, as well as pay the relevant application fees. Afterwards, a copy of the application must be served on the tenant in accordance with the statutory procedures and posted outside the door of the property.
The second step is to apply for judgment. If the tenant does not raise an objection within seven days after receiving the notice, the landlord may obtain the judgment in approximately two to three days. If the tenant raises an objection, a hearing will need to be arranged, and the entire process will take at least more than half a month.
The third step is to apply for a writ of possession. After obtaining the judgment, the landlord may apply for a writ of possession, which will be enforced by the bailiff in accordance with the court order to recover possession of the property. However, the repossession action will not take place immediately, and the exact date will depend on the scheduling of the bailiff for the relevant district.
It should also be noted that even if the tenancy agreement clearly prohibits subletting, before taking action to recover possession, the landlord should still confirm whether the tenant’s conduct actually constitutes a breach of the tenancy agreement and whether the relevant evidence is sufficient to support the application. As the terms of different tenancy agreements, the nature of the breach, and the actual evidence may vary, the appropriate way of handling the matter may not be exactly the same in every case.
