right to rent checks advice for landlords and estate agents

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Mitchell French
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1 right to rent checks advice for landlords and estate agents

2 The Home Office have recently piloted a scheme in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton whereby private landlords have been required to check that their prospective tenants have the right to remain in the United Kingdom before then authorising a residential tenancy agreement. This pilot scheme has been deemed a success and as a result all landlords from across the United Kingdom will be required to make the same checks ( right to rent checks) from 1 February 2016.

before then authorising a residential tenancy agreement.

3 What is a right to rent check? The Home Office are now introducing a new legal requirement whereby a landlord should not authorise an adult to occupy their property, as their main home, under a residential tenancy agreement unless the adult is a British citizen, EEA or Swiss National or has the right to rent in the UK. The provision is being introduced under Section 22 of the Immigration Act A person is considered to have the right to rent in the UK if they are considered to be lawfully present in the UK (in accordance with immigration laws). A landlord is required to conduct the check within 28 days before the start of a new tenancy. The check applies to all adult tenants and all types of tenancy agreements (written or oral). What do the Home Office consider to be a residential tenancy agreement? The Home Office are amending the legal meaning of a tenancy agreement for the purpose of a right to rent check so that it includes any: Lease Licence Sub-lease Sub-tenancy. The following residential tenancies, which grant a right of occupation, are considered to be exempt: Social Housing Housing arranged by a Local Authority in response to a statutory duty that is owed to that individual (i.e. emergency housing etc) Care Homes Hospitals and Hospices that provide continuing healthcare Hostels and Refuges Agreements to which the Mobile Home Acts 1983 applies Accommodation that is provided by an employer to an employee Student accommodation that is provided by an educational institution Long leases which are for a term of seven years or more.

the adult is a British citizen, EEA or Swiss National or has the right to rent in the UK. The provision is being introduced under Section 22 of the Immigration Act 2014.

4 Who is liable for completing the checks? Responsibility for completing these checks will lie with the landlord as they are deemed to be the person who has authorised the occupation of the property in return for payment of rent. However if an occupier subsequently sub-lets and authorises occupation by other adults under a separate sub-tenancy agreement, then they will be responsible for occupation by the sub-tenants. Any occupier who sub-lets all or part of their accommodation to a person for money will be a landlord for the purposes of the Home Office (unless there is a written agreement to the contrary). Should a landlord utilise an agent then such a landlord would need to have an express written agreement with the agent for the agent to assume responsibility for conducting the necessary checks. If the agent establishes that a person does not have the right to rent and reports the matter to the landlord in writing, the landlord will then become liable if a residential tenancy agreement is subsequently authorised. What do the Home Office consider to be a residential tenancy agreement? If a landlord is found renting to a person who has no right to rent, the landlord may be issued with a referral notice informing them that the details of their case are being referred to the appropriate authorities. The landlord will have the opportunity to present information and evidence as to the circumstances of the authorisation of the residential tenancy agreement. If the landlord is then found in breach (and without a defence) then the landlord will be issued with a Civil Penalty Notice. A landlord could be fined up to 3,000 should it be established that they have failed to comply with their statutory duties. What is a right to rent check? In order to establish a statutory excuse and therefore avoid liability, the designated responsible party (i.e. the landlord or agent) must have seen original documentation (and have taken copies of those documents) which demonstrate that the individual has the right to reside in the UK. These checks must be conducted before the tenancy begins and then must be followed up at an appropriate date.

However if an occupier subsequently sub-lets and authorises occupation by other adults under a separate sub-tenancy agreement, then they will be responsible for occupation by the sub-tenants.

5 Should a follow up check establish that a person does not have the right to reside in the UK (and therefore does not have the right to rent) then the landlord must make a report to the Home Office immediately. It is important to note that a landlord can choose to evict the tenant at that stage or await further instructions from the Home Office as the Home Office have the power to grant temporary permission to rent. As the law requires checks to be performed on all adults who live at the property (regardless of whether they are named on the tenancy agreement or not) it may also be advisable for tenancy agreements to be re-drafted to either specify all adults who are permitted to reside at the property or a clause added that states that the main tenant must declare to the landlord any adults who also live in the property (should they be living in the property as their main home). In addition, checks are not required should a tenant state that the property is not their main home (i.e. it is a holiday home). Should this be the case then it may be advisable for the tenancy agreement to be amended in order to reflect this fact and evidence sought as to the location of the tenant s main home (such as proof of address and right to reside in that property). If a tenant states that they have an outstanding immigration application or appeal and therefore do not possess their original documents, a landlord can utilise the Landlords Checking Service in order to complete their statutory checks. How Howard Kennedy can help Howard Kennedy s immigration team can provide landlords and agents with advice and assistance on how and when right to rent checks should be completed, so as to avoid a potential hefty fine whilst at the same time ensuring compliance with data protection laws. Key contact Antonia Torr Head of Immigration Services T: +44 (0) E: antonia.torr@howardkennedy.com

It is important to note that a landlord can choose to evict the tenant at that stage or await further instructions from the Home Office as the Home Office have the power to grant temporary permission

6 No. 1 London Bridge London SE1 9BG DX Southwark 4 Tel: +44 (0) Fax: +44 (0) Linkedin: howard-kennedy

Scheme for landlords and their agents (applicable as of 1 st February 2016)

Right to Rent Code of Practice Scheme for landlords and their agents (applicable as of 1 st February 2016) ISBN 978-1-78655-136-8 Right to Rent Code of Practice Scheme for landlords and their agents (applicable