You will be a subtenant if you rent from a tenant who is renting the property from a landlord. This page explains how subtenancy agreements work and what your rights are.
What is a subtenancy?
Provided their landlord gives them permission, private tenants, council, housing association and housing cooperative tenants can all sublet the whole or part of their homes to subtenants. The relationship between tenants and landlords is as follows:
Landlord -> head tenant (your landlord) -> subtenant (you)
Joint subtenancies can also be created, and joint tenants can also sublet property.
My rights as a subtenant
As a subtenant, your rights will depend on how you rent your property.
If you rent a room from a tenant who also lives on the property, you will probably be a common law tenant. Check out the section on sharing with your landlord to find out your rights.
If you rent from a Scottish secure tenant, you will not become an assured or Scottish secure tenant but will have the same rights as a tenant who shares with their landlord (ie a common law tenant).
If you want to rent a room from a member of a housing cooperative, you will have to become a member of the co-op before you start renting. However, this will not make you a Scottish secure tenant. You will still have the rights of a common law tenant.
Am I a lawful subtenant?
Most tenants need to get permission from their landlord before subletting their homes. If the head tenant doesn't ask permission, or if their tenancy agreement does not allow subletting, this does not affect your rights as their subtenant. The head tenant will still be responsible for keeping the property in a decent state of repair, and they will have to go through the correct procedure to evict you if they want you to leave. However, if the landlord finds out and wants the head tenant to end your tenancy, they will have to do so.
An unlawful subtenancy can be legalised if the landlord finds out about it but continues to accept rent from the head tenant regardless, without putting the subtenancy to an end.
What are my rights if the head tenancy comes to an end?
Subtenants of Scottish secure or short Scottish secure tenants
If you are the lawful subtenant of a Scottish secure or short Scottish secure tenant, then the landlord will be able to evict you fairly easily once the head tenancy has come to an end. In order to do this they must give you the correct notice and, if necessary, get a court order to recover possession of the property. The page on eviction of common law tenants explains this process.
If you are in this position, contact the landlord and explain your position. Depending on why the head tenancy has come to an end, there is a small chance that you may be able to take the place of the head tenant and become a Scottish secure tenant, with all the rights that implies.
Subtenants of private tenants
If you are the lawful subtenant of an assured or short assured tenant, then you will retain your rights to stay in the property and will take the place of the head tenant once their tenancy has ended. The head tenant's landlord will then become your landlord. However, if the head tenant has been evicted because of your behaviour, you will be evicted as well.
If the head tenant was subletting to you without their landlord's permission, the landlord may not consider that you have any rights.
What should I do if the head tenancy comes to an end?
Get in touch with the head tenant's landlord as soon as possible to find out what your position is and whether or not you are likely to be able to stay on in the property.
Make a homeless application to the council
If you have nowhere to stay or have no right to continue living in your home, you can apply to your local council as homeless. The council has a duty to offer you:
advice and assistance to find a new home, and
somewhere to stay at least until they make a decision on your case.
Depending on your circumstances, the council may offer you a permanent home.
Last updated: 24 January 2020