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Subtenant or Lodger? The Legal Distinction Can Really Matter

It might be thought that there is little if any difference between a ‘subtenant’ and a ‘lodger’. As a Court of Appeal ruling in a criminal case showed, however, there is a real legal distinction between the two that can matter very much indeed.

The case concerned a local authority tenant who was accused of subletting part of his flat to a succession of tenants. That was said to be a breach of the terms of his lease, which forbade such subletting without the council’s permission. The lease, however, did not prohibit him from taking in lodgers.

Following a trial, the tenant was convicted of fraud offences, receiving an 18-month suspended prison sentence. Confiscation and costs orders totalling over £140,000 were also made against him. As a result, he lost his home, his civil service job and his prospects of a comfortable retirement. His mental health suffered badly and he had at times been rendered homeless.

After he lodged a challenge to his conviction, the Court noted during a preliminary hearing that prohibition of unauthorised subletting is commonplace in social housing tenancies in order to ensure that scarce homes remain available to the genuinely needy and that they are not rented out to subtenants for profit.

It was undisputed that the tenant had not sought the council’s consent to sublet part of his flat. He asserted in his evidence, however, that he had always lived in the flat himself and that those whom he permitted to occupy it with him were not subtenants but lodgers.

The Court found it at least arguable that the trial judge’s directions to the jury were in one respect inadequate. He appeared to have referred to ‘subtenants’ and ‘lodgers’ interchangeably without directing the jury as to the legal distinction between the two. It was arguable that he should have given fuller directions as to what the prosecution had to prove in order to establish that the tenant had sublet part of his flat in breach of his lease. The tenant’s appeal was referred to a panel of the full Court for further consideration.

Published
29 November 2021
Last Updated
13 December 2021