Unauthorised Occupants in Rental Property: What Can Landlords Do?

What counts as an unauthorised occupant?

An unauthorised occupant is someone living in the property who isn't named on the tenancy agreement and hasn't been approved by you. This could range from a partner who moved in, to a lodger the tenant is charging rent to, to a complete sublet where the original tenant has moved out entirely.

The key distinction is between:

• Permitted occupants - Partners, family members, or guests allowed under the tenancy terms
• Unauthorised occupants - Anyone living there without your knowledge or consent who isn't permitted under the agreement
• Subtenants - People who are paying rent to your tenant

Partners and guests vs subletting

There's a significant legal difference between a tenant's partner moving in and actual subletting. Most tenancy agreements permit partners and reasonable guests without requiring landlord approval.

A partner or guest is generally not a problem if:

• The original tenant still lives there as their main home
• No rent or payment is being collected from the guest
• The tenancy agreement doesn't explicitly prohibit it
• The property isn't becoming overcrowded

However, subletting occurs when:

• The tenant is charging rent to others
• The original tenant has moved out but kept the tenancy
• Someone else has exclusive possession of part or all of the property

What does the tenancy agreement say?

Your tenancy agreement is the starting point. Most ASTs include clauses covering subletting, lodgers, and additional occupants. Common provisions include requiring written consent for subletting or prohibiting it entirely.

Check for clauses about:

• Subletting - usually prohibited without written consent
• Lodgers or paying guests - may require permission
• Notification of occupants - tenant may need to inform you of changes
• Maximum occupancy - linked to property size and licensing

If your tenancy is silent on these issues, the tenant generally has more flexibility, but subletting without consent is still usually a breach.

Is subletting always a breach?

Subletting without the landlord's consent is almost always a breach of the tenancy agreement. Even if the written agreement doesn't explicitly address it, the implied terms of an AST generally prohibit subletting without permission.

There are two types of subletting to consider:

What can I do about unauthorised occupants?

Your options depend on the severity of the situation. Start with communication, then escalate to formal action if needed.

1. Investigate first - Confirm who is actually living there and the arrangement
2. Review the tenancy - Check what the agreement says about occupants
3. Contact the tenant - Ask for an explanation in writing
4. Issue a warning - If it's a minor breach, a written warning may resolve it
5. Serve Section 8 notice - Using Ground 12 for breach of tenancy terms
6. Report illegal subletting - If it's a social housing property, report to the council

Using Ground 12 for breach

Ground 12 is a discretionary ground for possession where the tenant has broken any term of the tenancy agreement. Unauthorised subletting or having prohibited occupants would typically qualify.

To use Ground 12:

• Identify the specific clause that has been breached
• Gather evidence of the breach (photos, witness statements, tenant admissions)
• Serve a Section 8 notice citing Ground 12
• Wait the minimum 2-week notice period
• Apply to court if the breach isn't remedied

Being discretionary, the court will consider whether eviction is reasonable. If the tenant remedies the breach (removes the unauthorised occupant), the court may refuse possession.

Illegal subletting penalties

Illegal subletting primarily applies to social housing, but private landlords can still take action through civil routes. For social housing, councils can prosecute and recover profits.

For private tenancies:

• Possession proceedings - Use Ground 12 through the courts
• Breach of contract claim - Sue for losses caused by the breach
• Recovery of subletting profit - In some cases, you may claim profits the tenant made

For social housing tenants who illegally sublet:

• Criminal offence under the Prevention of Social Housing Fraud Act 2013
• Unlawful profit orders - courts can order repayment of rent received
• Fines up to unlimited amount
• Loss of security of tenure