Tessa Shepperson puts he lawyer’s take on the new Right to Rent Regulations effective from Monday next, the 1st of Frebruary.
I expect you are already aware of this, but from Monday you must not rent to anyone who has not passed a right to rent check. That means ANYONE.
I’m not going to tell you in this mailing exactly how to do the checks as it is important that you read and are familiar with the government online guidance, which you will find linked from here.
For example if you pass an ID document which looks different from those pictured in the Document Checks User Guide here you will be in breach and vulnerable to a fine. Although the Home Office do not expect you to be forgery experts, they do expect landlords and agents to follow their online guidance.
Be careful about referring to printed copies of the online guidance too – the Home Office tend to update their information from time to time and you need to refer to the most current version.
The fine by the way is £1,000 per person not checked, rising to £3,000 pp after the first offence. Its £80/£500 for lodgers – yes these new rules apply to people renting to lodgers too.
Here are a few points to help you:
Your mind-set should be ‘damage limitation’
You are not an immigration official and it’s not your job to actively seek out illegal immigrants. Your main focus should be on making sure that you comply with the rules AND (very important) are able to prove that you have done so.
To this end I have done a checklist for Landlord Law members which you can use to record the check information and then keep with the other tenancy documents (logged in members will find it here).
You need to be careful about discrimination
You should check everyone and not do anything (such as requiring a residence period or specifying specific occupations) which could make it difficult for certain nationalities.
However, the fact that someone has passed the Right to Rent check does not mean that you have GOT to rent to them. You are entitled to have your own more stringent checks – so long as they are not discriminatory either. It is not discrimination, for example, to refuse to rent to someone because you do not think they would be able to pay the rent.
There is a government code of practice on avoiding discrimination which you should read here.
Signing tenancy agreements before the checks are done
There will be times, for example where people are coming from abroad, where they will want to sign the tenancy agreement to reserve the property, but it will not be possible for carry out the right to rent check at that time.
In those circumstances, you need to make your tenancy agreement conditional upon a successful check being done before they move into the property. The Landlord Law agreements (England versions) now have this clause as standard.
Note that the checks should be done in the 28 days before the tenancy starts – so it may be best not to do the checks too early anyway.
Company lets and sublets
With company lets and sublets it should be your tenant who does the checks as they are the ones responsible for the occupier being there. So YOU do checks against them and THEY do checks against their own tenants or licensees.
I have put this in the Landlord Law company let form now, just to make it clear.
You don’t need to check existing tenants as at 1 Feb.
Only if something changes such as if a new tenant joins the tenancy agreement or the property changes (i.e. if they start renting some extra rooms). You will then need to do checks before the new tenant moves in or (if the property changes) at that time.
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 to be too large for them – will they be bringing in unauthorised persons later?
AND – make sure you read the government guidance!
The right to rent checks regulations have implications for your tenancy agreements. For example:
You need to have conditional clauses for tenancies signed before the checks are done
It’s a good idea to name all occupiers as well as tenants – and (for good measure)
State the total number of people allowed to occupy
For data protection purposes you should also tell them you will be hanging on to their paperwork and that you may have to pass it over to the Home Office in certain circumstances.
Needless to say I have spent the past few weeks revising all the Landlord Law tenancy agreements and new versions are now online. These are just for tenancies in England as these regulations do not apply to Wales (but Welsh landlords – you have even greater changes in the pipeline …)
The English tenancies are all brand new templates so I am afraid (if you are a Landlord Law member) you will not be able to re-do your old agreements. I have put messages on all the old form pages to notify you of this.
Note that there are still a few new English agreements to be done – if you need one of these urgently let me know and I will fast forward them.
If you are not a Landlord Law member, you should consider getting your tenancy agreement reviewed or maybe get a new one (or maybe join Landlord Law and use ours?).
In most cases the right to rent checks you do should be fairly simple as your tenant will have a British passport. So long as you have a record of the check (and keep a copy of the passport) you should be all right.
For more complex cases, I strongly recommend you use the online Home Office checking companion here. If you do what the online guide says and keep a record of it, you should be safe.
Landlord Law members will find a lot more information about Right to Rent in the new Right to Rent check section here.
Tessa Shepperson www.landlordlaw.co.uk