Subletting and lodgers: What tenants are and aren’t allowed to do
There comes a point in many tenancies when a tenant starts thinking about whether they could take in a lodger to help with the bills, or whether they might sublet their flat while they are away for a few months. These are understandable impulses, particularly given how much renting costs. But subletting and taking in a lodger are two very different things legally, and both are areas where tenants get into serious difficulty by acting first and asking questions later.

The difference between a lodger and a subtenant
The distinction matters, because the legal status of the person you bring in determines your rights, their rights, and your obligations toward them.

A lodger is someone who rents a room in a home that you also live in. Most lodgers have their own bedroom, so that is not the test. The real question is whether you live at the property and share living accommodation with them, such as the kitchen, bathroom and living space. If you do, they are usually a lodger. A lodger has a licence to occupy, not a tenancy, and is an excluded occupier under the Protection from Eviction Act 1977. You can end the arrangement with reasonable notice, without a court order. To be a lodger rather than a subtenant, you must be living at the property both when the arrangement starts and when it ends. A lodger’s deposit also does not have to be protected in a deposit scheme.

A subtenant is a different matter. If you have moved out, or the person has a self-contained part of the property with no shared living space, you have created a subtenancy. You have effectively become their landlord, which brings real landlord obligations. A subtenant generally has stronger protection than a lodger. Where you still live in the property but they have their own separate space, you will usually need a court order to remove them.

What your tenancy agreement says
The starting point for both is your tenancy agreement, but the two situations are treated differently.

Most private tenancy agreements require you to obtain written permission before subletting. Even where the agreement is silent, section 15 of the Housing Act 1988 implies a term into periodic assured tenancies that you must not sublet or part with possession of any part of the property without your landlord’s consent. The landlord does not have to be reasonable in refusing.

Lodgers are different. Because a lodger does not take possession of the property, that implied term does not cover them. A lodger is restricted only if your agreement contains an express clause, and many agreements do.

Breaching these terms could allow your landlord to seek possession for breach of tenancy (Ground 12). This is a discretionary ground, so the court decides whether it is reasonable.

How to approach this correctly
If you want to take in a lodger or sublet part of your home, request permission from your landlord in writing before making any arrangement. Explain what you are proposing, who the person is, and what the arrangement would look like. Most landlords have no fundamental objection to lodgers, provided you live at the property and their interests are protected. They will reasonably weigh up a few points:

• HMO status: a lodger can turn a property into an HMO (three or more people from two or more households), which may need a licence.
• Insurance and mortgage conditions.
• Occupancy limits, to avoid overcrowding.

You will also have Right to Rent responsibilities. For Right to Rent purposes, you are treated as the landlord of a lodger or subtenant. The check applies to anyone aged 18 or over before they move in, and civil penalties apply per occupier for failures. You can agree in writing that your landlord or agent carries out the checks instead.

A few practical points are worth knowing:

• Rent a Room Scheme: you can earn up to £7,500 a year tax free from a furnished room in your main home.
• Council tax: you will lose any single person discount.
• Benefits: lodger income may affect Universal Credit and housing support.

What you cannot do
Subletting the entire property, moving out and letting someone else live there while you keep paying rent, is almost never permitted under a standard tenancy agreement. It also puts your own position at risk, because the tenancy is only assured while you occupy the property as your only or principal home. Moving out and subletting can cost you your security as well as breaching the tenancy.

Airbnb and other short term lets are generally a business use outside the permitted residential use. They also usually breach the landlord’s mortgage, insurance and any lease terms, and London has planning limits on short lets.

Lodgers have no right to stay once your tenancy ends. Subtenants you took in without permission are also unlikely to have any rights against your landlord. But where a landlord has consented to a sublet, the subtenant may become the landlord’s own tenant when yours ends, which is one reason landlords are cautious about agreeing.

The simplest rule is the one that applies in almost every situation: ask first, in writing, and wait for a written yes. Keep the landlord’s consent with your tenancy documents.

Questions about your tenancy? Talk to our lettings team today