As highlighted in our legal update posted on 16 October 2014, the Home Office has released guidance for landlords ahead of the Right to Rent Check Pilot Scheme (the “Scheme”) which launches in the West Midlands (Birmingham, Walsall, Sandwell, Dudley and Wolverhampton) on 1 December 2014.

The guidance outlines those individuals who will be subject to landlords’ checks, and the various requirements placed on landlords when carrying out the checks. It also sets out the potential civil penalties that landlords may face if they do not comply with their obligations under the Scheme.

According to the 2011 Census, over half of the migrants (56.5%) to England and Wales between 2001 and 2011 rented accommodation in the private sector. The “new right to rent check” will have a significant impact on private landlords and therefore cannot be ignored.

Who is affected by the Scheme?

As highlighted in our legal update posted on 16 October 2014, the Scheme will commence on 1 December 2014. It will affect:

Landlords letting private rented accommodation;

Landlords or occupiers allowing a lodger to live in a property;

A tenant or occupier sub-letting a property; or

Agents appointed in writing by landlords to take responsibility for compliance with the Scheme.

The Scheme will relate to all new tenancy agreements made on or after 1 December 2014. Certain types of property are exempt from the Scheme including, but not limited to, student accommodation and those who have purchased long leases.

The Scheme will affect not only those individuals named as tenant in a tenancy agreement but also anyone else living in the property. Checks must be made in relation to anyone aged 18 or over who is living in the property as their only or main home. Landlords should therefore ensure that they are aware, at all times, of everyone who is living in their rented properties and their ages.

The checks must be carried out on all adults who live in the rented property. Where a child will turn 18 during the tenancy, landlords will not be required to conduct additional follow-up checks when the child turns 18. The new adult need only be checked when further checks fall due. Landlords should not make any assumptions about a person’s ‘right to rent’ under the Scheme on the basis of their background, appearance or accent.

Landlords or their agents, if appointed to do so, must consider if the rented property and the related tenancy agreement fall within the scope of the Scheme. In addition, those landlords who use estate agents and/or managing agents to rent their property must check the terms of their agreements with these agents to establish who (i.e. the landlord or the agent) will hold responsibility for compliance with the Scheme. Any doubt is likely to be construed against the landlord, making compliance the landlord’s responsibility.

When do checks need to be carried out?

Landlords should check and keep copies of acceptable documents (see below) before they allow an individual to move into their property the first time or when any new tenancy agreement is entered into, if for example, the tenant moves to a different property with the same landlord.

What documents need to be checked?

Documents which landlords are required to check and copy in order to comply with the Scheme may fall into either List A or List B documents as defined by the Home Office Landlords should familiarise themselves with the lists in full; depending on a prospective occupier’s nationality and immigration status, different documents (or combinations of documents) will be required.

The three step checking process

  • A three step process should be followed by all landlords or the appointed agents when checking the document(s):
  • Obtain original versions of the required acceptable documents;
  • Check that the documents are genuine and that the holder is the person named in the document. The holder must be present in person or via live video link/Skype/FaceTime whilst the checks are being undertaken (we appreciate the live video link is likely to be too impractical in most situations although modern technology does make this far easier); and

The document(s) should be copied in a form that cannot be altered (e.g. scan or photocopy) and retained securely for the duration of the tenancy and for at least one year after it has come to an end and the occupiers have moved out. Please note that the documents may need to be stored in accordance with other legislative requirements. A record of the date the checks are undertaken must also be kept.

Repeat checks may be required by the landlord, depending on which document(s) were originally provided to the landlord. Landlords will need to submit a report to the Home Office, if a follow up check shows or the landlord suspects that the individual no longer has the right to be in the UK and therefore no longer has a “right to rent”.

Whilst the Home Office recognises that landlords cannot be expected to be experts in recognising if various international travel documents are genuine, (which may not always be in English), landlords will be liable for a civil penalty if it is ‘reasonably apparent’ that a document that the landlord checked is false. It is likely to take time before it is clearer as to how this test will be applied.

What if documents are not checked?

Landlords could face a civil penalty of up to £3,000 per illegal occupier if they have an illegal migrant in occupation of their property under a tenancy agreement and they have not conducted the checks properly or at all or submitted the reports as required, as referred to above.

Landlords or their agents will therefore need to feel confident about who is subject to the checks under the Scheme, and how/when the checks must be carried out, if they want to avoid being liable to pay these penalties. Properly established processes will allow landlords to integrate checks into the usual routine of entering new tenancy agreements. Failure to put such processes in place could lead to administrative confusion about who is responsible for carrying out the checks and when to do so and possible financial repercussions.

Either our Immigration or Property Dispute Resolution teams would be happy to discuss any of the issues raised in this article. The Immigration team can offer a training session on how and when to conduct the checks under the Scheme. Our Property Dispute Resolution team can advise on any landlord and tenant issues.

If you have any questions or require any further advice, please contact Chetal Patel (immigration) or Lesley Robinson (tenancy issues).

Chetal  Patel photo

Chetal Patel

Senior Associate

+44(0)20 7551 7741

View full information about Chetal Patel
Lesley Robinson photo

Lesley Robinson

Partner and Head of Real Estate Disputes

+44(0)20 7551 7855

View full information about Lesley Robinson

Posted on 19/11/2014 in Legal Updates

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