What’s the difference between a lodger and a subtenant?
Subtenants rent from an intermediary tenant rather than the owner of the property. The owner of the property is sometimes called the head landlord, and the person in-between is sometimes called a mesne landlord.
A subtenancy can apply to anything from a single room to an entire property. The main difference is that the subtenant must have exclusive access to at least one room – usually a bedroom. Neither the mesne landlord nor the head landlord can enter the subtenant’s accommodation without permission.
Having a lodger is similar, but the lodger can’t stop the landlord from entering their room(s). The lodger may also receive some services, such as meals, laundry or cleaning. These things will depend on what was agreed at the start of the tenancy. Sub tenants may have stronger rights than lodgers.
What tenancy status do subtenants have?
As with any other type of tenant, subtenants’ status depends on:
- the type of accommodation they live in
- whether they share with the immediate landlord
- the date they moved in
- what the tenancy agreement says.
It is possible for subtenants to have any type of private tenancy if the conditions for that type of tenancy are met.
In most cases the following rules apply:
- most subtenants are likely to be assured shorthold tenants
- if the tenancy started before 15 January 1989 the subtenant is probably a regulated tenant
- if the subtenant shares facilities such as the kitchen with the landlord or a member of her/his family, s/he is likely to be an excluded occupier.
There are exceptions, so get advice if you’re not sure of your status.
What rights do subtenants have?
Subtenants have the same rights as other tenants.
This includes rights to:
- claim housing benefit to cover the rent
- occupy the room(s) that they have exclusive use of without interference from other people (including the mesne tenant or the head landlord)
- challenge rent increases
- get repairs done.
However, the subtenants’ rights may change if the mesne tenancy ends (see below). This is particularly important if the immediate landlord has a fixed-term tenancy, such as an assured shorthold tenancy.
What happens if the mesne tenancy ends?
The subtenancy will be valid for as long as the mesne tenancy continues. But whether the subtenant has any rights after the mesne tenancy ends depends on whether the subtenancy is legal or not.
This depends on:
- what type of tenancy the mesne landlord has
- what it says in the mesne landlord’s tenancy agreement
- whether the head landlord agreed to the subtenancy.
If the head landlord knowingly accepts rent directly from the subtenant, it may become legal. This is true even if the subtenancy was originally illegal (for example, if the mesne landlord’s tenancy agreement said subletting is not allowed). By accepting rent, the head landlord may be admitting that the subtenant has a right to live in the property. However, some landlords will get round this by saying that they are only accepting the money as something called a ‘charge for use and occupation’ and not as rent. This is a complicated area of law, so get advice.
If your landlord’s tenancy ends and your subtenancy remains illegal, it is worth trying to negotiate with the head landlord, but s/he can evict you very easily.