Landlords' obligations under 'right to rent' rules

Since 1st of February 2016 residential landlords with property in England are required to carry out enquiries to ensure potential tenants have the right to rent property in the UK. Essentially landlords are required to check the tenant’s immigration status. Failure to undertake these checks risks a penalty of £3,000 if an occupier of the property is later found to be living in the country illegally.

Worryingly, approximately 70% of landlords have previously reported to be in the dark about their obligations under the new law, according to a survey by the Residential Landlords Association. I therefore intend to provide a brief outline of the law change and its implications. I have previously updated clients of Holmes & Hills Solicitors with a free update on these and other changes impacting upon them at two free events the firm organized in Braintree, Essex and Sudbury, Suffolk. I have also spoken on this topic at an event organised by the National Landlords Association and Tendring District Council, as a special guest speaker.   

The new rules require checks to be made in respect of tenants or lodgers (over the age of 18) residing in a residential property in England if their tenancy starts on or after the 1st of February 2016. Checks should be undertaken before authorising an adult to occupy. In the case of prospective tenants/occupiers with a limited right to rent checks must be undertaken (and evidenced) within the 28 days before the tenancy is entered into. Such tenants, who have a “time limited” right to rent, must then be subject to follow up checks before the end of their eligibility period

These checks must be made whether the tenancy agreement is written or verbal. Where a tenancy was entered into prior to 1st of February 2016 but is renewed after this date, and where the agreement is with the same tenants and there has been no break in the tenant’s right to occupy the premises, the landlord will not be required to undertake checks. However, if there is a new occupier upon renewal this would constitute a new tenancy for the purposes of the scheme and checks would have to be undertaken against all named tenants and occupiers.

The following steps are required in order to ensure checks are properly performed:

1. Check which adults will live at your property as their only or main home;
   
2. See the original documents that allow the tenant to live in the UK;
   
3. Check that the documents are genuine and belong to the tenant, with the tenant present;
   
4. Make and keep copies of the documents and record the date you made the check. It is advisable to keep these records for a period of 12 months following the end of the tenancy.
   
5. Ensure the tenancy agreement contains clear rules about sub-letting and/or allowing others to occupy.
   
6. Include with the tenancy agreement a Schedule of Lawful Occupiers.

The government has published guidance on what documents landlords can use to validate a tenant’s ‘right to rent’ in the form of Right to Rent Document Checks: a User Guide which is available on the www.gov.uk website.

If a tenant’s permission to stay in the UK is time limited, landlords are required to make further checks to ensure the tenant continues to have permission. A  civil penalty can be imposed if the landlord fails to make these further checks and a tenant’s permission to remain in the UK has expired.

A landlord must make a further check just before either:

1.The expiry date of the tenant’s right to stay in the UK;
2. 12 months after the previous check.

In the event it is discovered that an existing tenant does not have the ‘right to rent’ the landlord is obliged to inform the Home Office and risks penalty if they do not.

David Dixey is a lawyer at Holmes & Hills Solicitors specialising in providing legal advice to landlords across Essex and Suffolk.