The position of subtenants under previous residential tenancy regimes was clear – a tenant could not provide any greater rights to the property than they themselves had been provided.
The position however under the Private Residential Tenancy has potential for a significant departure and is worth exploring to avoid potential problems.
What is subletting?
Subletting arises where a tenant rents either a room (in the let property) or lets the whole property to a third party. In this situation, the tenant continues to be the tenant of the landlord under a head tenancy but also becomes the landlord to the subtenant under a subtenancy. This situation might arise where the tenant wishes to temporarily vacate the property for a period of time for a job or to travel.
What are the potential problems?
Under the Private Housing (Tenancies) (Scotland) Act 2016, a lawful subtenant with a Private Residential Tenancy is protected from eviction when the lease between the landlord and tenant ends in certain circumstances. The subtenant then becomes the tenant of the landlord under a new tenancy with the same terms and conditions as the subtenant’s original tenancy agreement.
Subtenants’ protection applies:
- Where the subtenancy has been lawfully granted; a subtenancy is not lawfully granted where subletting the let property is precluded by the head lease, and the landlord has not expressly or impliedly consented to the subtenancy being granted or continuing.
- Where the eviction order terminating the head lease was granted on the basis of the tenant’s conduct. For instance, if the tenant under the head tenancy accrues three consecutive months of arrears, the landlord can serve notice to leave and thereafter obtain an eviction order against the tenant. On termination of the head tenancy, the subtenant becomes the tenant under a new tenancy with the landlord.
Accordingly, landlords faced with a request for a sublet or aware of an unauthorised sublet should seek legal advice prior to authorising same or permitting such occupation to continue. Tolerating an unauthorised sublet could result in protection for the subtenant and an inability to recover the property following termination of the head lease.