Sub-letting in breach of lease?

[brightncheerful]

Residential tenancy law is not my field but from my law library:

"Where an assured tenant sublet the demised premises on a shorthold tenancy, this was held to be wholly inconsistent with the requirement under Housing Act 1988 s1 that the tenant should occupy the demised premises as his principal residence. Ujima Housing Association v Ansah (1998). However, in Waltham Forest Community Based Housing Association v Siobhan Fanning [2001] it was held that an assured tenancy still continued despite the fact that the tenant had sublet provided the tenant could demonstrate a genuine intention to return to the premises. "

[JonE]

for example the landlord cannot kick the tenant out but still requires a S8 application.

You're talking about a section in the Housing Act but that act refers to assured shorthold tenancies. Re-read (for example) what Mike4 and Pochisoldi wrote: at least one of the purported ASTs does not qualify as an AST because the tenant does not occupy it as a residence. The tenancy (or licence or whatever) having been excluded from scope of the Act by section 1, section 8 can not be relevant. Here's section 1 of the "founding" '88 Act:
http://www.legislation.gov.uk/ukpga/1988/50/section/1

We should all be wary of the meaning of the terms 'landlord' and 'tenant' because the leaseholder can be a 'tenant' in his relationship with the freeholder but is usually called a landlord in his relationship with the party occupying the property: the meanings are context-sensitive.

On the initial question, it is nearly always the case with leasehold properties that answers are to be found in the lease itself.

Cheers!

[GoSeigen]

for example the landlord cannot kick the tenant out but still requires a S8 application.

You're talking about a section in the Housing Act but that act refers to assured shorthold tenancies. Re-read (for example) what Mike4 and Pochisoldi wrote: at least one of the purported ASTs does not qualify as an AST because the tenant does not occupy it as a residence. The tenancy (or licence or whatever) having been excluded from scope of the Act by section 1, section 8 can not be relevant. Here's section 1 of the "founding" '88 Act:
http://www.legislation.gov.uk/ukpga/1988/50/section/1

We should all be wary of the meaning of the terms 'landlord' and 'tenant' because the leaseholder can be a 'tenant' in his relationship with the freeholder but is usually called a landlord in his relationship with the party occupying the property: the meanings are context-sensitive.

On the initial question, it is nearly always the case with leasehold properties that answers are to be found in the lease itself.

Cheers!

I was actually paraphrasing Pochisoldi there, but anyway, I've now done some reading and it seems to me that a tenancy can cease to be an assured tenancy if the tenant does not or ceases to live in the property as his main residence. In this case it becomes a basic tenancy only benefiting from the protections of ss3 and 5 of the Protection from Eviction Act 1977 (i.e. no Rent Act or HA 1988 protections), so basically the landlord must give 4 weeks notice to quit and obtain a court order for eviction, no grounds needed.

See for example:

http://england.shelter.org.uk/legal/sec ... _occupiers


There is no question that while the tenancy continues rent must be paid. [EDIT: And the terms of the tenancy are determined by the contract.]

Do you agree with the above?

GS

[Lootman]

a tenancy can cease to be an assured tenancy if the tenant does not or ceases to live in the property as his main residence. In this case it becomes a basic tenancy only benefiting from the protections of ss3 and 5 of the Protection from Eviction Act 1977 (i.e. no Rent Act or HA 1988 protections), so basically the landlord must give 4 weeks notice to quit and obtain a court order for eviction, no grounds needed.

No grounds are needed for the owner of a housing unit to evict anyway. It is deemed sufficient that the owner wants vacant possession.

If instead the eviction is for cause, then it's a Section 8 notice rather than a Section 21 notice, the latter being effectively a no-fault eviction and the former being an at-fault eviction.

And incidentally, unapproved subletting is just cause for a Section 8 eviction, along with non-payment of rent, criminal behavior, noise and disturbance and so on.

[GoSeigen]

a tenancy can cease to be an assured tenancy if the tenant does not or ceases to live in the property as his main residence. In this case it becomes a basic tenancy only benefiting from the protections of ss3 and 5 of the Protection from Eviction Act 1977 (i.e. no Rent Act or HA 1988 protections), so basically the landlord must give 4 weeks notice to quit and obtain a court order for eviction, no grounds needed.

No grounds are needed for the owner of a housing unit to evict anyway. It is deemed sufficient that the owner wants vacant possession.

If instead the eviction is for cause, then it's a Section 8 notice rather than a Section 21 notice, the latter being effectively a no-fault eviction and the former being an at-fault eviction.

And incidentally, unapproved subletting is just cause for a Section 8 eviction, along with non-payment of rent, criminal behavior, noise and disturbance and so on.

I think you need to carefully reread and understand the thread, and maybe the law on fixed-term assured tenancies too.

GS

[Lootman]

a tenancy can cease to be an assured tenancy if the tenant does not or ceases to live in the property as his main residence. In this case it becomes a basic tenancy only benefiting from the protections of ss3 and 5 of the Protection from Eviction Act 1977 (i.e. no Rent Act or HA 1988 protections), so basically the landlord must give 4 weeks notice to quit and obtain a court order for eviction, no grounds needed.

No grounds are needed for the owner of a housing unit to evict anyway. It is deemed sufficient that the owner wants vacant possession.

If instead the eviction is for cause, then it's a Section 8 notice rather than a Section 21 notice, the latter being effectively a no-fault eviction and the former being an at-fault eviction.

And incidentally, unapproved subletting is just cause for a Section 8 eviction, along with non-payment of rent, criminal behavior, noise and disturbance and so on.

I think you need to carefully reread and understand the thread, and maybe the law on fixed-term assured tenancies too.

I don't see your counter-argument there but one of the points I was making is that a landlord cannot successfully execute a no-fault eviction until the end of a lease, regardless of the duration of that lease. If I was dumb enough to give you a ten year lease then you will be there for 10 years if you want to be, even if I want you gone in the meantime.

An at-fault eviction, on the other hand, can happen at any time without regard to the duration of the lease, because you have broken the terms of that lease.

Once a lease has expired, a tenant is at the mercy of the landlord, both for continued residency and for whatever rent increase the landlord sees fit to impose.

By the way and merely out of curiosity, I don't get the impression from your investment commentary that you are short of a few bob. Why do you rent? The older I get, the more I don't want to be beholden to a landlord, and have not been since 1978, except for brief interludes overseas.

[GoSeigen]

No grounds are needed for the owner of a housing unit to evict anyway. It is deemed sufficient that the owner wants vacant possession.

If instead the eviction is for cause, then it's a Section 8 notice rather than a Section 21 notice, the latter being effectively a no-fault eviction and the former being an at-fault eviction.

And incidentally, unapproved subletting is just cause for a Section 8 eviction, along with non-payment of rent, criminal behavior, noise and disturbance and so on.

I think you need to carefully reread and understand the thread, and maybe the law on fixed-term assured tenancies too.

I don't see your counter-argument there but one of the points I was making is that a landlord [...]

The problem Lootman is that there was so much wrong in there that I'd not know where to start. For example, you claim that one of the points you were making was about the landlord, yet your earlier post did not even mention a landlord, just the owner, who may of course be completely irrelevant.

Further, you carelessly use terms like "housing unit", "lease", "vacant possession" etc which bear no relation to the preceding discussion about AST's. It seems to me you either know very little about UK tenancy law or don't care enough to write accurately about it... feel free to prove me wrong though!

Perhaps you're thinking more about US law...?

GS

[Lootman]

The problem Lootman is that there was so much wrong in there that I'd not know where to start. For example, you claim that one of the points you were making was about the landlord, yet your earlier post did not even mention a landlord, just the owner, who may of course be completely irrelevant.

Further, you carelessly use terms like "housing unit", "lease", "vacant possession" etc which bear no relation to the preceding discussion about AST's. It seems to me you either know very little about UK tenancy law or don't care enough to write accurately about it... feel free to prove me wrong though!

Again, you didn't actually disprove anything I stated.

I became a landlord when I was very young, and built a BTL business over a period of 32 years (1978 to 2010) during which I owned 15 housing units and had over 100 tenants. I never needed a court eviction and never missed a rent payment. So do please tell me that I don't know anything about the business.

One of the skills I learned during this time was to develop uncanny instincts about who would be a good tenant and who would not be. And believe me, two of my top "avoid at all costs" types of applicants were the amateur lawyer type and the over-entitled tenant.

The law around this stuff changed a lot during my time. It's all very interesting but, as I said before, every time I asked a tenant to leave, they left. A simple note, even hand-written in some cases, was sufficient. Could they have been a PITA and tried to winkle out on technicalities? Probably. Do most normal reasonable people do that? Nope.

You seem a little too intense about this topic so I wonder what is really going on.

[GoSeigen]

for example the landlord cannot kick the tenant out but still requires a S8 application.

You're talking about a section in the Housing Act but that act refers to assured shorthold tenancies.

Incidentally, I don't think this Section refers to ASTs even once. It is about Assured tenancies of which ASTs are a subset....


GS
P.S. I always had you down as a lawyer -- mistaken??

[JonE]

for example the landlord cannot kick the tenant out but still requires a S8 application.

You're talking about a section in the Housing Act but that act refers to assured shorthold tenancies.

Incidentally, I don't think this Section refers to ASTs even once. It is about Assured tenancies of which ASTs are a subset....

The '88 Act introduced what we call the assured shorthold tenancy. Yes, they form a sub-set of assured tenancies but that sub-set didn't exist prior to the '88 Act (which is why I referred to it as the "founding" act).

Perhaps I shouldn't have written that the act "refers" to ASTs if it doesn't literally do so - but it does apply to ASTs. With the '96 Act the AST became the default form of residential tenancy but my point was that if the arrangement regarding one or more of the flats (per OP) took it outside the scope of the HA (per s.1) then the repossession and security of tenure provisions of that Act (such as s.8) couldn't be relied on.

An AST "is a form of assured tenancy with limited security of tenure, which was introduced by the Housing Act 1988":
https://en.wikipedia.org/wiki/Assured_shorthold_tenancy

Cheers!
I am not now nor have I ever been a lawyer

[GoSeigen]

Perhaps I shouldn't have written that the act "refers" to ASTs if it doesn't literally do so - but it does apply to ASTs. With the '96 Act the AST became the default form of residential tenancy but my point was that if the arrangement regarding one or more of the flats (per OP) took it outside the scope of the HA (per s.1) then the repossession and security of tenure provisions of that Act (such as s.8) couldn't be relied on.

Okay, I understand and agree, much clearer now. I guess what you wanted to say is that if the facts of the tenancy do not match the definition of an AST or the wider Assured Tenancy then it falls out of the remit of the HA 1988 altogether -- with which I concur. [And again, the s8 reference was not mine originally but echoed from Pochisoldi's earlier reference to it here: viewtopic.php?p=199012#p199012]

GS

[Infrasonic]

Share of freehold building, with individual flats owned on identical very long leaseholds:

In general terms, is the following permitted, or permitted unless the lease specifically precludes it?

Share of freeholder A owns flat 1, and lets it on an AST to tenant X
Share of freeholder A also owns flat 2, and later also lets it tenant X, who then sub-lets it to 'sub-tenant' Z

Of course I haven't seen the Tenancy Agreement re: flat 2^ (though the owner confirms both are now let to tenant X), nor any agreement re the sublet. Is there anything that stands out as potentially 'not allowed'? I ask as it seems a bit contrary that a tenant can rent and then sub-let the whole flat at will.

I'm concerned the above sub-letting could prejudice the building insurance; it also brings an unusual sense of random people/anonymity to the quite small building.

[I'll x-post this with a link to the Property Investors board]

Thx

Is there maybe a spot of AirBnB'ing or similar going on here? Have you checked to see if there any listings for it?

I ask because it is a real issue in the flat development I live in and more generally in Manchester...https://www.manchestereveningnews.co.uk ... b-15657160

It has been deemed illegal by our managing agents on the grounds of buildings insurance and 'other' reasons, but unfortunately the legal responsibility falls on the freeholder (according to the agent...) who don't seem very enthusiastic about pursuing it.
Consequently despite lots of threats pretty much all the leaseholders who are doing these short term lets have continued, and I'm pretty certain there are a few tenants at it as well in some of the multi occupancy triplex flats (which may be your situation?).

There's been talk of the council getting involved on a landlord/premises licensing or even property blacklisting front (via the courts) where the nuisance aspect becomes prominent, but I've not seen anything concrete yet.

[Lootman]

Is there maybe a spot of AirBnB'ing or similar going on here? Have you checked to see if there any listings for it?

I ask because it is a real issue in the flat development I live in and more generally in Manchester...https://www.manchestereveningnews.co.uk ... b-15657160

It has been deemed illegal by our managing agents on the grounds of buildings insurance and 'other' reasons, but unfortunately the legal responsibility falls on the freeholder (according to the agent...) who don't seem very enthusiastic about pursuing it.
Consequently despite lots of threats pretty much all the leaseholders who are doing these short term lets have continued, and I'm pretty certain there are a few tenants at it as well in some of the multi occupancy triplex flats (which may be your situation?).

There's been talk of the council getting involved on a landlord/premises licensing or even property blacklisting front (via the courts) where the nuisance aspect becomes prominent, but I've not seen anything concrete yet.

A few cities have cracked down on Airbnb'ing. I believe that includes Paris, Barcelona, New York and San Francisco (ironically the HQ of Airbnb). I am not aware there are any outright bans, but the regulations include some kind of licensing and a limit to the number of nights a year you can do it.

I've done some short-term letting myself although not via Airbnb. To my mind it's egregiously wrong when a tenant does that because it is in effect stealing from the landlord. And any well-written lease will explicitly forbid that.

But I don't have a problem with owners doing it, particularly in jurisdictions which have rent control, eviction control or other regulations that make long-term renting an unattractive proposition.

FYI Airbnb is planning an IPO in 2019. The target valuation is $30 billion. Not bad for a vacation rental business that owns no property

[Infrasonic]

But I don't have a problem with owners doing it, particularly in jurisdictions which have rent control, eviction control or other regulations that make long-term renting an unattractive proposition.

It depends on what you mean by 'owner' though.
A leaseholder of a flat is almost certainly in breach of the leasehold agreement because of the buildings insurance aspect (as a minimum). The New York hotels brought a lot of pressure to bear on ABnB being ultimately licensed because of all the extra costs that legitimate 'commercial' short term let businesses have to pay, like insurance.

I have a friend who has a freehold (ex office conversion) property nearby who ABnB's, very nice spec triplex flat.
Less of an issue there, unless he causes a nuisance to his neighbours because of inconsiderate guests (which is the major issue in my flat development, although luckily not in my specific block...).

When freeholders/leaseholders are abroad there seems to be a bit of 'whilst the cats away' going on. I look after a couple of flats for a friend who is US based (but a UK/US dual national) and there's definitely been some subletting issues going on before I got involved.

[JonE]

A few cities have cracked down on Airbnb'ing

Never mind cities! There are even countries which think they can 'crack down' on it!

The dysfunctional government and parliament of Cyprus have responded to the lobbying from hotel owners and the construction sector (ie the usual suspects) by coming up with a half-baked Bill said to be about ensuring safety and quality of Airbnb-type holiday accommodation by registering all properties used for short lets (and taxing gross income from those lettings on same basis as other rental income). It's due to be presented in less than a fortnight but they haven't yet worked out how/if consent to let will be handled. Whatever ill-considered, partisan, home-brewed law they eventually adopt won't make sense, will be riddled with loopholes and, in practice, will be ignored and won't be policed or enforced (or, at least, not uniformly and fairly).

Greece has been round the 'legislating for airbnb' loop a few times in recent years and it seems the current version of its scheme has thresholds (number of properties and level of rental income) which are high enough to permit modest and occasional activity without excessive administrative burden but seem intended to catch those undertaking a holiday lettings business. No idea if, or how well, it works for any of the parties.

Cheers!
Disclaimer: I ceased doing Furnished Holiday Lettings over a decade ago and no longer have any skin in that game.

[DiamondEcho]

I was away for a while and meanwhile forgot I'd made the OP here. The topic has continues at some length in my absense! This weekend I'll go back and recap on all the later replies to see if there is anything I need to fill in...

Thx!