Legislation update! – Right to Rent
Since1 February 2016 (and 1 December 2014 in the pilot areas; Birmingham, Walsall, Sandwell, Dudley and Wolverhampton) private residential landlords have been prohibited from allowing an adult to occupy property as their only or main residence under a residential tenancy agreement if that adult does not have the “right to rent” as a result of their immigration status. The “right to rent” regime in the Immigration Act 2014 attempts to prevent people who are living in the UK unlawfully from accessing key services such as private rented accommodation. Before you let out any residential property in England on a new assured shorthold tenancy (AST), you therefore need to ensure that either you or your agents carry out the checks required under the Immigration Act 2014; the “right to rent” checks. If it later transpires that any adult occupiers do not have the “right to rent” you will have a “statutory excuse” by virtue of having carried out the required checks and will not be penalised. Contravention of these requirements leads to a civil fine of up to £3,000 and is a criminal offence for repeat offenders. The new requirements do not apply to existing tenancies or renewal tenancies where the original tenancy was entered into pre-1 February 2016, the parties are the same and there has been no break in occupation.
As prudent charity trustees you may feel more confident asking an agent to carry out the checks. This is fine but you must obtain your agent’s agreement in writing that they are taking responsibility for carrying out the checks on the landlord’s behalf.
The Home Office has provided comprehensive guides to explain the obligations on landlords and how to carry out the “right to rent” checks. Please see the links at the end of this article.
Before you enter into a new residential tenancy you or your agent should:
Step 1: Make enquiries of the prospective tenant to establish who will be living at the property as their only or main residence – Note that this includes all adults who are not named in the tenancy agreement. You need to make all reasonable enquiries. It is strongly recommended that a record of the enquiries made is kept should questions be asked later.
Step 2: Obtain original documents to confirm the immigration status of the prospective occupiers.
Step 3: Check the original documents in the presence of the holder - Please read the Home Office guidance (see links below) setting out the obligations relating to checking the documents; You must check whether the document is valid? Does any photo look like the holder? Are any dates of birth consistent with the holder?
Step 4: Keep a record of the date when the checks were carried out and a copy of the document - You must keep the copy for at least one year after the end of the tenancy but ensure that it is kept for no longer than necessary and in a secure place further to your obligations under the Data Protection Act 1998.
Step 5: If your checks establish that any adult occupiers have a “time-limited” right to rent then you will need to ensure that further “follow-up” checks are carried out either 12 months after the initial checks or the expiry of the time-limited right to rent if earlier - If the “right to rent” has expired then you are obliged to notify the Home Office. Please refer to the specific guidance provided by the Home Office in the links below.
Please bear in mind your obligations under the Equality Act 2010. You must avoid unlawful discrimination when conducting the right to rent checks, namely you should check ALL new tenants and not just those you suspect are not British citizens.
Details of the requirements are set out in the Home Office guidance, links to which is set out below:
If you have any questions on the “Right to Rent” then do not hesitate to contact TMCP legal who will be happy to assist with your enquiries.