PROPERTY CLINIC: I think my tenant has moved their partner into my property without telling me, could this cause me problems?
- Most tenancy agreements do not allow subletting without prior permission
- A tenant may be in breach of their tenancy agreement if they move someone in
I’ve spotted a new car outside of my tenants’ house. It has been regularly parked there ever since the tenant moved in a month ago and the tenant is not the driver.
I’m wondering if the tenant has moved in a new partner permanently. Does the tenant need to tell me if they have moved someone else in and what does this mean for the tenancy agreement? CB
Can a tenant move in someone new without prior permission from the landlord?
MailOnline Property expert Myra Butterworth replies: If there is evidence that a tenant has moved someone else in, it is worth investigating further to check if this is the case.
This is because it may affect the tenancy agreement and your rights as a landlord, particularly if any rent is missed and you want to repossess the property.
If there is clear evidence that someone new is living at the property, the tenant could be in breach of their contract. There is often a clause in tenancy agreements about not subletting a property.
If someone else has moved in, it is important that the situation is not left unaddressed. The situation can be resolved by officially allowing the permitted occupier and making an amendment to the tenancy agreement.
In this way, you will protected as a landlord and the tenant will not be breaching their contract.
David Cox, of Rightmove, says: This is why having an up-to-date tenancy agreement is so important. A landlord has rented the property and so the tenant could move someone in if there are no terms prohibiting this in the tenancy agreement.
There is a standard clause that is in most tenancy agreements about not allowing subletting of all or part of the property without permission from the landlord. Once the partner moves in, they become what is known as a ‘permitted occupier’.
It becomes an issue if the tenant moves out, as the permitted occupier can lawfully stay because the tenant has allowed them into the property.
As there is no contract between the landlord and the permitted occupier, the landlord would have to chase the tenant for the rent, and separately follow the normal procedure to evict the permitted occupier. It means two legal complaints.
However, there is a solution, and that is to make an amendment to the tenancy agreement allowing the permitted occupier.
Should the tenant leave the property and stop paying the rent, the permitted occupier becomes the new tenant and is liable to pay all the rent.
Most tenancy agreements do not allow subletting without prior permission
FEES FOR AGREEMENT CHANGES
Amending a tenancy agreement to include an additional clause is one of the few things that a tenant can be charged for.
Since the Tenant Fee Ban began on June 1 last year, tenants can no longer be asked to pay lettings fees and deposits are capped at five week’s rent.
However, as a tenant requests that a permitted occupier be added to their agreement, it is the tenant, not the landlord, that is entitled to pay the amendment fee.
Under Schedule 1 of the Tenant fees Act, a contract variation that has been requested by the tenant is a permitted payment and therefore, the landlord or agent could charge up to £50 including VAT – but only if that fee has been clearly stated in the original tenancy agreement.
Chris Norris, policy director of the National Residential Landlords Association, says: In general, most professionally drafted tenancy agreements include clauses that allow new permitted occupiers only with the consent of the landlord.
Such clauses are generally in place to protect the landlord from encountering issues with their insurance, or breaching the terms of their own lease if their property is a leasehold, or the terms of their licence if the property is a House of Multiple Occupation.
It does not necessarily change the tenancy agreement however. Your agreement is with the original tenant and they are the one expected to follow the terms set out in it. That said, you should avoid implying you have given permission for the other person to become a tenant by accepting rent directly from them. You should also write to your current tenant and let them know that they are in breach of their agreement.
If your tenant does ask for permission for their new partner to move in, you should agree to this if it is reasonable to do so. If the new partner can afford to pay some of the rent and has suitable references, then the best solution is to formalise the arrangement with a new tenancy agreement in both their names.
If you cannot give permission and the tenant refuses to remove the new partner then you may need to take legal action to end the tenancy agreement. This may though take some time given the current extended notice periods for possessions and the delays in processing applications to court.