Otillåten andrahandsuthyrning och oskälig andrahandshyra - En analys av gällande respektive föreslagen lagstiftning

Sammanfattning: Unlawful subletting and unjustifiable rents are widespread problems in Sweden. Tenants sublet their rental apartments without landlords’ permission and charge subtenants too high rental levels. The issue has drawn the attention of the Swedish Ministry of Justice, which in February 2017 appointed a committee to investigate whether decreasing unlawful subletting motivated by lucrative profits requires changes in Swedish tenancy regulations. The committee’s proposals are presented in SOU 2017:86. The aim of this thesis is to analyse current and proposed tenancy regulations, by focusing on regulations of unlawful subletting and unjustifiable rents in regard to the legislative intent. To do so, it addresses three questions. First, if and how current legislation fulfils its legislative intent. Second, whether the proposed legislation can be expected to fulfil its legislative intent; and third, if general perspectives on subletting have changed since current regulations came in place. In order to answer these questions, two methods are used: traditional judicial method, and legal policy method. An analysis of legislative history and earlier decisions by the Court of Appeal indicates that current legislation on unlawful subletting and unjustifiable rents seems to fulfil its legislative intent, although the legislation can appear somewhat misleading. Legislative deficiencies can, however, mostly be attributed to extrajudicial factors, such as housing shortage and increased subletting, rendering regulations insufficient in face of societal development. The proposals in SOU 2017:86, such as increasing subtenants’ rights to claim repayment of unjustifiable rents, and criminalisation of unlawful and profit-driven subletting, indicate there is a political will to tighten the legislation. But although the proposal can be expected to fulfil its legislative intent to deter unlawful subletting and the charging of unjustifiable rents, it also seems slightly disproportionate. It is therefore questionable if all its propositions should be accepted and accepted into Swedish tenancy regulations. Regarding the last question, whether general perspectives on subletting have changed, it seems there is still consensus about the overall benefits of allowing people the opportunity of subletting. However, there has been a change of view regarding how unlawful subletting should be resisted.