Unlawful Subletting – Are you at Risk of Prosecution?

Anyone who has had to deal with their local authority in connection with social housing will be well aware of the loops that you are forced to jump through and the time and effort it takes simply to get a suitable roof over your head.

The trouble is, demand is greater than supply. There barely seems to be a day that goes by without some new development project shouting from the rooftops that a proportion of its new builds will be social housing, but the truth is that for all the noise, the number actually being built cannot keep up with what’s needed.

This is, no doubt, the rationale behind the Department of Work and Pensions launching a major crackdown on social housing in terms of who gets it and what they are entitled to do with it.

Of course, cracking down on those who are breaking the rules is one thing, but being clear about what those rules are in the first place is not always something that the DWP and local authorities are always so good at. So let’s take a closer look, to find out what they are making so much fuss about.

Housing fraud

One thing the government is very clear about in its council housing policies is that there are dire consequences, including eviction and even prison for those who commit housing fraud. This essentially means either acquiring the council house under false pretences or subletting it unlawfully.

The first point is easy enough to understand – when you apply for a council house you need to tell the truth in your application as to your family circumstances. The second is not always quite so clear.

Unlawful subletting

The rules regarding subletting vary depending on the type of tenancy you have. In essence, if you have the following types of tenancy, you could face prosecution for illegally subletting your home:

  • If your landlord is a local authority and you have a secure or flexible
  • If your landlord is a housing association and you have a secure, assured, assured shorthold or demoted assured shorthold

You cannot be prosecuted for unlawful subletting if you have a family intervention tenancy, or if you are living in a shared ownership property, where it is part bought and part rented.

What does unlawful subletting mean?

There are two types of unlawful subletting. The first is if you sublet your entire home in breach of your tenancy agreement. The second is if you sublet part of your home, and you no longer live in it as your primary place of residence, while knowing that doing so constitutes a breach of your tenancy agreement.

There are also varying degrees of seriousness to the crime of unlawful subletting. In the circumstances described above, it is sufficient for you to have acted in the knowledge that you were breaching your tenancy agreement. If you are also deemed to have acted dishonestly, the penalties can be higher. In this context, the test for “acting dishonestly” is usually whether you have made money from the activity.

In addition, there are associated crimes for which people can be prosecuted, such as conspiring with you to unlawfully sublet a property. So if someone has helped you to commit the offence, they could face prosecution too.

Penalties for offenders

Most cases of unlawful subletting are heard in a magistrate’s court. If found guilty, you are likely to face a fine. There is no specific maximum amount prescribed, so it very much depends on the circumstances and the stance taken by the magistrate.

If you are prosecuted for the more serious offence of unlawful subletting and acting dishonestly, the case might be heard at either the magistrate’s court or the Crown Court. For this offence, there is the potential for a custodial sentence of up to two years, or a fine, or both. The court can also make an unlawful profit order, whereby you are required to repay any profits you made through the unlawful subletting.

As if all that wasn’t enough, there is also the possibility that your landlord might launch a civil suit against you. This could incorporate eviction proceedings as well as an unlawful profit order as described above.

Who prosecutes?

It sounds dramatic, but it really happens. Over the past few weeks, there have been several instances of individuals facing jail terms for the offence, following the DWP crackdown. For example, this individual made an £11,000 profit from subletting his council house in Charlton and is now facing a 12 month prison sentence, suspended for 18 months.

The point to keep in mind is that the local authority can prosecute for the offence of illegal subletting even if it is not your landlord. If you are a regular visitor to these pages, you might remember this previous article of mine, which demonstrates that local authorities are always keen to prosecute, even if an offence does not seem overly serious.

What to do

It is one thing understanding the rules, it is quite another trying to dig yourself out of a predicament if you have already broken them. We all make mistakes from time to time, and if you are facing prosecution for unlawful subletting, the first important piece of advice I will offer you is not to panic. You’re not the first person in this position, and you won’t be the last.

The second thing is not to ignore it. The “head in the sand” approach is always tempting, but it only makes things worse.

Thirdly, get help. The court system, the DWP and local authorities are tricky things to deal with, and there are numerous elephant traps for the unwary. At Hylton-Potts, we deal with these institutions every day, so we understand what to say and do on your behalf to help you towards the best possible outcome.

If you are concerned about any aspect of unlawful subletting, just remember – the sooner you let us know about your circumstances, the quicker we can help you deal with it.  You can give us a call us on 020 7381 8111, or email us at law@hylton-potts.com.

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