Lawful subtenancy

A subtenant has a perfectly valid tenancy as long as the head tenancy continues to exist, irrespective of the legality of the subletting. However once the head tenancy comes to an end the right of the subtenant to remain in occupation and to hold a tenancy directly from the landlord will often depend on the legality of the subletting. This will in turn depend on the type of tenancy held by the head tenant and whether s/he has permission to sublet. A tenant who has been given permission to sublet subject to any conditions will have created a lawful subtenancy.

Even if a subletting is unlawful it can subsequently be 'legalised' if the landlord waives, ie agrees not to act on, the breach of the tenancy agreement. The landlord can do this by continuing to accept rent from the head tenant and not seeking to recover possession of the property despite being aware of the unlawful subletting.

It is important to note that regardless of whether the subtenancy is lawful or not, any landlord who is wishing to evict a subtenant must first obtain a court order allowing them to do so. [1]

At common law the tenant of an unfurnished urban property is entitled to sublet the tenancy without the written consent of the landlord unless there is a clause in the lease prohibiting subletting. [2] The common law has been substantially altered by statute and advisers should check the position with regards to the tenure of the head tenant.