Your rights when subletting

An Absolute prohibition on subletting is rare but can be found in some leases. If present, then it is hard to avoid. It is not a term that an individual leaseholder could apply to the Leasehold Valuation Tribunal (LVT) to vary under section 35 of the Landlord & Tenant Act 1987.

An absolute bar on subletting could be the subject of an application under section 37 of the 1987 Act, provided a substantial majority of the leaseholders are in favour of variation. The most common clause requires the leaseholder to obtain the freeholder`s consent to subletting (a qualified covenant). The clause may require the leaseholder to provide a copy of the tenancy agreement and covenants to be entered directly with the freeholder.

The clause may also say consent should not be unreasonably refused, but in any event the Landlord & Tenant Act 1927 section 19(1) provides that the landlord`s consent should not be unreasonably refused for subletting.

Also, where a written application is served on the person who may consent to the subletting they owe, pursuant to Section 1 of the Landlord & Tenant Act 1988 , a statutory duty to the leaseholder, within a reasonable time: -

• To give consent unless it is reasonable not to do so
• To serve notice of their decision whether to give consent including any conditions and if withheld, the reasons.
• The onus of proof is on the person refusing the consent, or imposing conditions, to show that these are reasonable and that they notified the leaseholder within a reasonable time.

The leaseholder`s remedies against unreasonably refused consent to subletting are as follows:-