It is more important than ever that landlords make their checks correctly and comply with ‘right to rent’ legislation. Luckily the Residential Landlords Association (RLA) has put together a handy guide.
Here are 12 things you need to know…
1) To which lettings do the rules apply? The legislation applies to all residential lettings, not just assured shorthold tenancies. Licenses and lodger agreements are included.
There are limited exceptions in some areas, such as social housing and halls of residence. Holiday lets; lettings where it isn’t the tenant’s main home; tenancies longer than seven years without a landlord break clause; student lettings where the education institution makes the placement; employer-provided accommodation and mobile homes are excluded.
2) Who do I check? You have to check that everyone over 18 who will be using the property as their main home has the right to live in the UK. Children don’t need to be checked. However, if a child is close to 18 the landlord may need to prove their age. It is worth keeping a note of birthdates so you know if an occupier turns 18 during the tenancy, particularly as the parent’s right to remain in the UK can depend on the child.
3) Who has the right to rent? Some have a permanent right to rent – such as British citizens, European Economic Area Nationals and Swiss nationals. Those with a right of abode in the UK, indefinite leave to remain or no time limit on their stay, also fall into this group.
Others may have a time limited right to rent, for example if they have been granted leave to remain in the UK for a limited time or if there has been an Act of Parliament or other legislation allowing them to be here.
4) Does this apply to existing tenancies? There is no requirement to check the right to rent status of tenants in occupation before 1 February 2016. However, if the Home Office writes to a landlord or their agent to inform them that their occupier is disqualified, landlords will have to act. The RLA suggests it may be best practice to perform these checks on existing tenants when possible.
Landlords who successfully conduct the initial check must also remove a tenant if the Home Office writes to say they have been disqualified.
5) Landlords and agents must agree who is taking responsibility for the checks. Unless otherwise specified, the landlord is responsible. Likewise a tenant sub-letting will be responsible unless otherwise agreed. Landlords cannot be held responsible for unauthorised sub-letting checks.
6) When should I check? You only need to check those with permanent rights to remain once before the tenancy starts. For those with a time limited right to rent, landlords must keep a note of when it expires and check before that date. If the time left is under a year, they should check before then, even though checks last for 12 months. If the follow up check is failed, the landlord needs to start taking action to remove the tenant.
7) What if my tenant’s right to rent runs out during the tenancy? Right to rent checks last for a minimum of 12 months. Cutting the length of a tenancy for that reason would be discriminating against a prospective tenant. You would have to conduct a follow up check before the expiry and take action if that follow-up is failed.
8) How do I do the check? Establish the adults who will be using the property as their only or main home, obtain original versions of acceptable documents for all adults (the RLA has produced a list of acceptable documents for this) and check them in the tenants’ presence. Make copies of those documents and keep them with the date the checks were made – you should keep these for 12 months after the end of the tenancy.
9) My tenant’s right to rent has expired. You must report this to the Home Office as soon as possible and take reasonable steps to remove the occupier from the property.
10) How can I remove the occupier? The government has produced guidance on this as the actions depend on the circumstances. Acting quickly is essential in all cases. As long as you follow one of the paths of action the Home Office will be satisfied that you have complied.
11) What happens if I don’t comply? Under the old legislation this means a fine of up to £3,000 per occupier. However, if charged under the new offence of ‘allowing someone to let the property while being disqualified from renting in the UK’, landlords face unlimited fines and up to five years jail time.
The RLA has said it understands that these harsher penalties will be used for repeat offenders only. However, it advises landlords and agents to be careful as they could be tried under either offence.
12) Store the proof: make sure you have clear copies of documents in formats that cannot be altered and keep them securely (whether they are electronic or hard copies) in line with data protection requirements.
Landlords who do their initial checks and keep the evidence that they have done them, plus follow up on time-limited tenants will not be in danger. They would also not be liable if they can show that they passed responsibility to the letting agent.