4 March 2016 by

Right to Rent – Checklist for all private residential landlords

On 1 February, the ‘right to rent’ provisions of the Immigration Act 2014 came into force, requiring all private residential landlords to check that all new tenants have the right to reside in the UK, before they grant them a tenancy. At first glance, landlords and letting agents may view these new mandatory checks as yet more onerous ‘red tape’, but if they follow the Home Office guidance, the checks should hopefully become part of most landlords regular routine (much like the tenancy deposit protection requirements have become over the last few years).

Who is required to carry out the ‘right to rent’ checks

The new law is not retrospective, and so only covers ‘residential tenancy agreements’ granted from 1 February 2016 onwards.

Any landlord who now wishes to grant a residential tenancy agreement to an adult (who is over 18) must carry out the checks in the 28 days before the tenancy is granted.

The checks apply to corporate and private landlords granting either assured shorthold tenancies, contractual tenancies or lodger agreements, whether they are written or oral agreements. However, landlords can delegate responsibility for this to their letting agents, or to a company tenant where they will be sub-letting, provided this is agreed in writing.

Checks to be completed before granting a tenancy

  • Establish the details of all persons over the age of 18 who will be living in the property as their only (or main) residence.
  • Check original documents showing that the tenants have the right to reside in the UK, with the tenants present. Such evidence includes their current UK or EU passport, but for the full list of what other documentary evidence is acceptable, there is Home Office guidance available (click on the web link below).
  • Keep a copy of the documentary evidence and record the date you carry out the check on the copy document itself.
  • Retain the copy document(s) during the term of the residential tenancy agreement.

Follow-up checks during tenancy

  • For those tenants with time limited immigration rights, you must diarise a further check of any residence documents that are due to expire during the term of the tenancy; you must also check the documents of any of the tenant’s children who turn 18 during the tenancy.
  • The above follow up checks must be carried out within the 12 months of the commencement of the tenancy, or before the tenancy expires, whichever is later.
  • Where the tenant’s right to rent has expired during the tenancy, you must report them to the Home Office. However, at present, a landlord is not obliged to commence possession proceedings where a tenant’s right to rent expires during the term of the tenancy.

Requirements after the tenancy expires

  • All of the copy documents referred to above must be kept not only for the duration of the tenancy but for 12 months after the tenancy expires.
  • Landlords and their agents must also ensure all of the documents are stored securely, and, if stored electronically, kept in strict compliance with data protection legislation.

Failure to comply with these requirements could result in a civil penalty of up to £3,000.  However, at present, if a prospective tenant is unable to produce evidence of their right to rent, a landlord must not let the property to them, but the landlord is not obliged to take other action.

The above is not an exhaustive list of all the new ‘right to rent’ requirements – the Home Office guidance can be found at www.gov.uk/government/publications/landlords-right-to-rent-checks-guide.

Our specialist property litigation team can advise on (i) all aspects of the new checks, (ii) drafting clauses to deal with the new provisions in both tenancy agreements and agents’ terms of business and (iii) separate written agreements delegating landlords’ responsibilities to their agents or sub-tenants.

If you wish to discuss any of these issues, please contact us on 0207 288 4700.

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