Landlords and ASB practitioners face an additional hurdle when the perpetrators of anti-social behaviour are not their direct tenants or leaseholders but unauthorised occupiers either subletting or staying under licence or verbal agreement. The difficulty is that there is no direct relationship with the subtenant or unauthorised occupier so the usual remedies available for breach of contract are not available.
Where there are reports of serious or urgent nuisance attributable to a named unauthorised occupier in or around a property belonging to a social landlord, the Anti-social Behaviour Crime and Policing Act 2014 empowers the landlord to apply for an Injunction against them. This includes the power to exclude persons in certain circumstances; further a power of arrest can be applied for if the anti-social behaviour involves violence or real threats of violence.
However often complaints in respect of subletting (both long term and short term) are of a low level type nuisance, and the most likely solution to ongoing complaints is for the landlord to seek possession of the property.
Below I have outlined the options available to landlords to deal with both subletting generally but also those residents who let out their properties as holiday lets through sites such as Airbnb.
Subletting is typically allowed under a long lease however if nuisance has been caused to other residents then this may well be a breach of mutual covenant which could be relied upon when issuing proceedings for breach of lease. This might be in the form of an Injunction on breach of lease, once this has been proved then forfeiture proceedings may be open to the landlord if the leaseholder failed to remedy the situation.
For leaseholders who let their property out as a holiday let on Airbnb or via other websites, a recent reported case, Nemcova -v- Fairfield Rents Ltd introduced a test whereby the duration of occupation is relevant to determine whether a property is being used as a private residence or otherwise. It was held that a person occupying a property for only a few days or weeks would not be considered to be occupying as a private residence, thus the leaseholder in that case was in breach of her lease. This was a fact specific case so it is important in each case to consider the terms of the lease and seek legal advice if unsure. The rest of the lease may contain additional clauses prohibiting the leaseholder from using the property for business purposes, and again provisions in respect of nuisance and annoyance may be relevant.
For leaseholders who have bought their properties under Right to Buy/ Preserved Right to Buy (or indeed Voluntary Right to Buy in the future), subletting is normally permitted (with conditions) so is unlikely to form the basis of a claim. However, in holiday let cases, the usual term relating to use of the premises requires the leaseholders “not to use or permit or suffer to be used the demised premises or any part thereof other than for residential purposes”. This wording is distinguishable from “private residence” but leaves open a potential argument for landlords that, as discussed in Nemcova, residential purposes would not include use as a holiday let of a few days or weeks’ duration.
Subletting of the whole is prohibited by most secure, assured and fixed term tenancies, but there is often an implied or express term that tenants may sublet part of the Premises with consent and there is usually the right to have a lodger. Where the tenant has sublet the whole of the property then the primary claim would be said to be on the basis of non-occupation as their only or principal home and in the case of a periodic tenancy a Notice to Quit may be served on the basis that the tenant has lost their security of tenure and the tenancy can be ended as a contractual tenancy.
As this can easily be rebutted by the tenant stating they intend to return, it is usually advisable to serve a Notice of Seeking Possession without prejudice to the Notice to Quit on breach of tenancy – including all relevant clauses in respect of non-occupation, subletting and nuisance. Note a Notice to Quit would not be appropriate to terminate a fixed term tenancy.
If the tenant is letting out the property as a holiday let then it’s also likely that there would have been a breach of the condition not to use the premises for business purposes. It’s not uncommon for holiday guests to cause nuisance and annoyance to long term residents and this would further be a breach. There may also be a term within the tenancy that they are only to use the Premises for “residential purposes” and as above there is an argument that this would be akin to the term of “private residence” discussed in Nemcova, and they may have breached their tenancy by having persons occupying for short periods of time.
For shared owners, subletting is prohibited completely until the shared owner has fully staircased up to own 100% of the lease after which it may be allowed depending on the terms of the Lease. During the staircasing period, it is thus open to landlords to serve a Notice of Seeking Possession to terminate the tenancy on the basis of breach of tenancy. Also if the subtenants have caused nuisance then landlords will be able to rely on those further breaches of the lease.
Further, for cases where shared owners are offering their properties out for use as a holiday let, the model form of shared ownership lease specifies that the property should not be used as anything other than a private residence in single occupation so the Nemcova case is directly applicable.
Unlawful Profit Orders
It is possible to seek Unlawful Profit Orders against tenants (but not leaseholder or shared owners) who have sublet the whole of the property or part of their property without consent, have ceased to occupy as their only or principal home and have received monies in excess of their rent. It is therefore always worth trying to work out the fee being charged to subtenants or holiday let guests as this would form the basis of a money claim which might act as a deterrent to other tenants attempting to do the same thing.
Top tips for Practitioners
- Leases and tenancy agreements can and do vary from the standard terms cited so the specific terms of any lease/tenancy must be checked when considering taking legal action.
- If in doubt, always seek legal advice before serving any notice or issuing proceedings.
- As with all litigation, good evidence is key – a copy of the sublease, or screengrab of an online advertisement for a property is best, supported by evidence provided by other residents, CCTV (where available), key fob records and so on.
- Where non-occupation is alleged, it’s very important to find out where the tenant or resident is living while the property is being let out. Enquiries agents or Local Authority Fraud Teams may help here.
Anna Bennett is a Solicitor in the Housing Management department at Devonshires Solicitors LLP.
This article was first published in issue 80 of Resolution Magazine, a publication produced by Resolve ASB (http://www.resolve-asb.org.uk), on 19 December 2016.