The mandatory right to rent checks come into force TODAY, 1 February. From now on all landlords in England (ie not Wales) will have to carry out checks on all occupiers to ensure that they have a right to rent – or risk being fined.
This post sets out some guidance for you. First – here are some important points:
1 Your mindset should be ‘damage limitation’
The main thing you need to prove is not that the tenant has the right to rent but that you have complied with the rules so you don’t get fined.
You’re not an immigration official and keeping illegal immigrants out is not your job. However, the government require you to carry out these checks – so make sure you are in a position to prove that you have done so. Ideally you should:
- keep a record of the check and its result
- the date it was done,
- the name of the person doing the check
- details of questions asked and answers given (particularly if there are any suspicious circumstances) and
- copies of the ID documents provided to you
You need to keep this for at least one year after the tenancy ends.
NB I have a special checklist form for my Landlord Law members to use which can then be kept with the paperwork to prove the check was done (logged in Landlord Law members will find it linked from here)
2 You need to check EVERYONE
Everyone except underage children that is. But even then, you need to check their age, particularly if they are a teenager, just to be sure they really are under 18 (and keep a copy of the proof).
This means that in your tenancy agreements you should ideally now list everyone who will be living there, whether or not they are a tenant, and state in the terms and conditions that no-one else is allowed to live there without your permission (which will not be refused unreasonably).
Note also that these new rules will apply not just to landlords of tenanted properties, but also to people taking in lodgers, people renting out property under a license and also (interestingly) to Property Guardians.
Lodger landlords will find lodger agreements and our checklist for lodger landlords here.
3. You need to read and keep checking the online guidance
The Home Office have loaded up a lot of new guidance recently and will almost certainly carry on doing this. It is important that you have read and take account of this. You will be expected to know everything in the online guidance and so if you make a mistake – your ignorance will be no excuse.
For example, one of the guides, the Right to Rent Documents Check User Guide has detailed pictures of the relevant documents. Therefore, if you pass a document which is obviously different from the picture in the guidance you will be in breach and vulnerable to a fine (£1,000 for a first offence rising to £3,000 thereafter).
You will find the online guidance all linked from >> here.
4. You need to watch out for suspicious circumstances
Although the government have said that they do not expect landlords to be forgery experts, they do expect you to be sensible and take proper precautions. For example
- Check that there are no discrepancies in dates on the paperwork provided
- Make sure that the appearance of the person matches their ID photograph
- Be extra careful where documents are in poor condition as this may be an attempt to disguise the fact that they are forged
- Be suspicious if people are renting a property which appears too large for them – will they be bringing in unauthorised persons later?
Here are some common questions about right to rent checks:
- Who does checks on occupiers in company lets?
This will almost always be the company, as the company (your tenant) will be the landlord of the people they put in to occupy. My company let agreement now specifies this.
This will also be the case if you allow tenants to sublet or take in lodgers, unless there is some sort of agreement to the contrary.
- What about tenants signing tenancy agreements from abroad?
Here you need to make sure that the tenancy agreement is conditional upon a satisfactory right to rent check before they move in. So if they arrive and don’t pass – the tenancy agreement will not take effect.
My tenancy agreements (for England) now have this as standard so where tenants have not been checked before signing, you will not have to let them in if they fail the check.
There is also a clause entitling you to modest compensation if this happens as you will have to find another tenant and may have suffered loss.
- What about existing tenants?
You don’t have to check them. Unless there is a change in the property or the tenants.
So if at renewal there is a new tenant or they take over another part of the building, you will have to check them all at that time. But otherwise, you won’t.
Implications for tenancy agreements
All landlords agents, legal publishers and solicitors need to be reviewing their tenancy agreements now to take account of these rules. For example, for tenancies of properties in England:
Tenancy agreements should now be conditional upon satisfactory right to rent checks being done.
They should list all the occupiers (whether or not they are tenants) and prohibit other occupiers without the landlord’s consent (not to be unreasonably withheld)
For good measure, it is also a good idea to specify the total number of persons permitted to occupy the property (this will be particularly useful for HMO properties)
You should also notify tenants, for data protection purposes, that you will be holding information and that you may have to provide this to the Home Office in some circumstances.
Needless to say, that Landlord Law tenancy agreements (for England) now cover all these points. You can read about the tenancy agreements service here.
You will also find extensive guidance on right to rent checks with our checklist, FAQ and explanatory article.
And finally
There is a very useful online step by step guide that you can use when you are doing the checks, which tells you what you need to do >> here.
If you are checking someone whose documents are not straightforward I would highly recommend that you follow this guide, as if you do what it says (so long as you keep a written record of what you do) you should avoid any problems.
Ben Reeve-Lewis says
February 1, 2016 at 9:12 AMAs I wend my way aorund the country training council staff the current talk in many areas is the council doing these checks for landlrods who want them. A good idea I think as they have the specialist knowledge and even equipment for spotting fake documents
Ian says
February 1, 2016 at 3:24 PMPersonally I indent not to do these checks myself!
If someone is form the UK and has a UK password, then I know they are OK.
If they are from the UK and don’t have a UK password, maybe they are not the type of person I wish to let to anyway.
If they are not from the UK, http://www.landlordreferencing.co.uk/ has a service where they will check all the documents for a small charge.
Ben Reeve-Lewis says
February 2, 2016 at 8:47 AMAh but Ian, the fact is that under the British Nationalities Act 1981 it is entirely possible that a person could be born here, be in their 30s, even be the Pearly King of Lambeth but still not actually be a British citizen. It all depends on a number of factors to do with your parents. Whether they got naturalised, and whether they spent significant periods outside of the UK.
Ian says
February 2, 2016 at 3:56 PMBen,
But if they have a UK passport it will make it clear if they are a UK citizen. If not, I can just pay http://www.landlordreferencing.co.uk/ to do the checks as they know what all the different passports and visas look like. If someone claims to be a UK citizen but can’t show me their UK passport, I may just move on to the next person.
Therefore it is UK citizens without passports that may find it hardest to rent.
Why was there not a “right to rent” photo ID card created that someone could get from the post-office with an easy way for landlord to check if it is valid?
Ivan says
February 2, 2016 at 4:58 PMThis I agree with, an accredited scheme, which costs a reasonable fee of £20-30.
I find the whole thing ridiculous.
Our immigration control is so bad that we delegate the work to an unregulated private sector….
Tessa Shepperson says
February 2, 2016 at 9:07 AMYou also need to be able to show that you are doing checks against everyone or it is discrimination.
Ivan says
February 2, 2016 at 1:56 PMA few questions arise:
1: The tenant still has exclusive use of the property, so can invite whomever they like and exclude whomever they like. So how does one enforce the – prohibit all others – clauses. Would the tenant not become liable under the right to rent checks? – the LL cannot be reasonably expected to check on who lives at the property at all times?
2: Does this not simply promote the sale of passports which are otherwise un-needed. I know a few people (including my partner) who have no passport. And whilst I appreciate this is not the only form of identification acceptable, it certainly will be the one accepted most often. I suspect many LLs will be too scared to bother with other documents.
Tessa Shepperson says
February 2, 2016 at 2:01 PM1. There is nothing you can do about it, but provided you did all the proper checking before the tenants went in, you will not be liable if they act in breach of the terms of the tenancy agreement by having other people live there. As I say in the article – all you have to do is be able to show/prove that you have done all that you are supposed to do.
2. You need to address these questions to your MP not me!
Ivan says
February 2, 2016 at 3:57 PMHaha 🙂 Sorry Question 2 was more of a how will landlords and tenants handle the practicalities of this law, with the presumed solution being a surge in passport applications.
Thanks for clarifying question 1. Sorry you did say that.
Ben Reeve-Lewis says
February 2, 2016 at 2:10 PMIvan take note of Section 22 (5) b and c: Immigration Act 2015
(b)the adult later becomes a person disqualified as a result of their immigration status, and .
(c)the adult continues to occupy the premises after becoming disqualified.
So yes. The Act does require the landlord to check after first letting and will still be liable to a penalty if they fail to pick ujp that their tenant has lost their status.
Over the years I have lost count of cases I have dealt with where the Home Office granted status and later rescinded it in cluding one Jamaican guy, resident in the UK since 1974 and tenant in a council house for the past 10 years whom the HO suddenly decided didnt have legal status. It took them 18 months to realise their mistake.
Dont for a minute think of this as housing legislation. it is immmigration control through other means. The scheme was piloted in 5 midlands boroughs over 6 months ending the same time as the general election. The minute Camo and cronies got in they announced it would be rolled out nationally without even bothering to assess the results of the pilot scheme. That it might have been an unmitigatwed disaster was neither here no there, they simply didnt know but they wanted it enacted anyway.
Tessa Shepperson says
February 2, 2016 at 2:14 PMBen – don’t you mean the Immigration Bill? I don’t think it has come into force yet.
Ben Reeve-Lewis says
February 2, 2016 at 2:54 PMSorry I meant Immigration Act 2014 which contains Section 22, ushered in today
Tessa Shepperson says
February 2, 2016 at 3:09 PMYou only have to do the follow up checks if the initial checks show that the occupier has a limited right to rent. You don’t have to keep going round to the property every day to check that they have not moved in a load of illegal immigrants. That would be unworkable.
So either
1. You do the check and they have a right to rent. You are OK (so long as you keep a record of your check), or
2. You do a check and they have a limited right to rent – then you have to re-check when their right to rent runs out (having made a note in your diary of when this is at the time you do the initial check). If they at that time no longer have a right to rent – you need to notify the Home Office.
Thats it.
Jill says
February 2, 2016 at 3:55 PMI work with people who are homeless (among others) and I am not at all looking forward to sorting out problems where someone has found a place to live, and it’s legal for them to be in the UK, but there is some kind of document problem making it difficult to prove they can rent.
Having immigrated from a non-EU country myself, eventually becoming a British citizen, I am also thinking of how much harder it might have been for me to rent before I got Indefinite Leave to Remain. Why, in a tight housing market, would someone have rented to me when they could have rented to someone who wouldn’t require further box-ticking?
Yes, I should take this up with my MP.
Tessa Shepperson says
February 2, 2016 at 4:03 PMThese new rules will make it more difficult for the least privileged. Its no problem for a well off middle class person who regularly goes on foreign holidays to produce a passport. It is, as you say, considerably less easy for others who do not have these documents to hand.
MPs often are completely ignorant of the practical impact of the rules that they vote in so people who are experiencing problems should let them know.
Jill says
February 2, 2016 at 4:09 PMAnd since expired documents are acceptable, I suspect the worst problems will be with people born in the UK who don’t drive and don’t travel.
Ben Reeve-Lewis says
February 2, 2016 at 8:38 PMTo be honest I think the non discriminatory checking of everyone is a smoke screen. Most landlords will be on safe ground with anyone who looks and sounds British.
The ones I have spoken to about it say they simply wont let to anyone with a foreign accent or who they suspect of not being in possession of a set of cricket whites (joke before you start) So discrimination can come into play before they even have to run checks.
I remember as an 18 year old ringing up landlords advertising properties in Loot (does that date me?) and being invited to view but upon arrival, with my purple spiky hair and leather jacket being told the flat had just gone.
My partner Frazzy, despite being black doesnt sound on the phone like Theopholus P Wildebeast but has been turned down for jobs without even being interviewed when she turns up in person.
As I mentioned above this isnt housing law. The aim is to discourage people from abroad from coming to the UK when they cant hold a bank account or driving licence, cant get social housing and now not even private housing without chancing their arm with gangs and people traffickers in dangerous, sub-standard properties or sleeping on the street.
THIS is the true aim of this legislation, nothing more
.The job of prosecuting recalcitrant landlords is being left to the borders agency crew (whatever they are called this week) and having been on many a joint property raid with them over the past few years I dont hold out much hope for their enthusiasm for the task, let alone their resources, having been cut to the bone by public .
The aim is to scare and deter. I doubt we’ll actually see many prosecutions.
beelbeebub says
February 5, 2016 at 11:25 AMIt’s very common for me not to meet any children before tenant’s move in. They don’t always come to viewings and are not always present at the signing of the agreement or even the check in at the start of the tenancy.
Even if we do meet them, how are we to verify if a child is under 18? Particularly if they have no passport, presumably no drivers licence, no employer etc. Would a letter from the school be sufficient, but then how do I verify the letter refers to the person without at least photo ID?
In the case of babies and obvious children would a photo be sufficient? What about teenagers who are notoriously difficult to judge the age of?
Tessa Shepperson says
February 5, 2016 at 11:39 AMLandlords will now have to insist on being told exactly who is living in the property and on having proof of age of teenagers (babes in arms are OK!). Proof could be a birth certificate, passport (if they have it) letter from their school etc. Ideally you should see the children as well as the tenants.
It is inconvenient I know – all landlords should write to their MP and let them know exactly what practical problems are being experienced as a result of these new regulations and ask them what they are going to do about it.
Anon for reasons says
February 15, 2016 at 1:00 PMThe problem with that is outting people with protected statuses. Childrens birth certificates never change, so as if a parent comes out as trans, then asking for their kids birth certificates will also out them.
At some point you have to trust your tenants.
Tessa Shepperson says
February 15, 2016 at 1:21 PMA landlord MUST do right to rent checks on all adult occupiers (or risk a substantial penalty) and so will need to have proof of age for teenagers otherwise how can they know if they need to be checked or not? Tenants (sadly) do not always tell the truth.
I don’t think failing to ask for proof of age of a child occupier becuase this could embarass their parent if they turn out to be a trans will satisfy the Home Office. For example if it transpires that the child IS over 18 and does not have any right to rent.