Right to Rent: A Landlord’s GuideWritten By PropertyLoop 11th June 2021
Right to Rent checks may send shivers down the spine of many a landlord, with the repercussions for neglecting to accurately assess a tenants right to remain with the UK bringing with it detrimental repercussions for the property owner. Of course the search for a new tenant is an exciting time for landlords, but the stringent right to rent legislation must be adhered to.
What Is Right to Rent?
Established by the government in 2014 alongside the Immigration Act of the same year, the Right to Rent scheme demands that all landlords assess their tenant’s right to remain within the UK. These checks will also be applicable to lodgers and those that choose to sublet, with these checks being carried out prior to the signing of the tenancy agreement.
Are Right to Rent Checks a Legal Requirement?
The right to rent checks are part of a wider government initiative to control immigration, in an effort to thin out the numbers of renters’ illegally residing within the country. Landlords and rental property owners are legally compelled to carry pout these right to rent checks for each tenant that they wish to commence a tenancy with, no later than the 18 days preceding the start of the tenancy.
To this end anyone wishing to rent a property from a private landlord that is over the age of 18 will be subject to this assessment by their landlord. In order to conduct these checks the landlord will first need to determine the partied that will be using the rental property as their main residence. Following these each one of the prospective tenants will be required to produce documentation that states that possess the right to remain in the UK. Upon the scrutiny of these documents the landlord should make copies of each whilst detailing the date the inspection was carried out alongside the signature of the tenant. In some cases the aspiring renter will not have an unlimited right to rent within the UK, in such circumstance the landlord will be required to conduct a follow up check at a later date. As for when these follow up assessments are conducted, the owner of the rental property will either carry these out 12 months after the initial check, or close the expiry of the tenant’s right to rent; whichever holds the longest duration for the tenant.
What Documents Are Needed for a Right to Rent Check?
When determining the validity of a tenant’s right to rent within the UK, the landlord must not only ensure that each document provided if original and applicable to the tenant, but that their permission to reside within the UK has not come to an end and that each of the photos do indeed show the tenant. Alongside this the name and date of birth of the tenant should be constant across each of the documents that they provide; with this in mind names may be different because of marriage or legal changes however the resident must provide additional documentation to support this.
The documents that the aspiring resident will need to provide will comprise a British, EU, National identity Card or foreign non-EU passport that reveals the owners right to reside within the UK. The prospective renter would also be able to produce a Home Office Certificate or residence permit car, or a Certificate of naturalism.
If the landlord has not been provided with any of the above documents, or the tenant is unable to produce any proof of their right to rent, this can still be authenticated by the Home office through their “Landlords Checking Service”, allowing the landlord to get a definitive answer as it if their tenant has the right to rent.
Penalties for Renting to Disqualified Tenants
It goes without saying, but if a landlord is found to be knowingly letting to disqualified tenants then the repercussions can be severe for all parties concerned. If a landlord is found to be knowingly renting to those that do not hold the relevant immigration status then the act will be considered a criminal offence under section 33a and 33b of the 2016 Immigration Act. Penalties for the landlord comprise an unlimited fine and possibly up to five years in jail. However, landlord that abide by the appropriate right to rent conduct can rest easy as providing the property checks have been carried out the landlord will not be found negligent of their duties, or to have “knowingly” let out to disqualified persons.
With this being said if the landlord is found to have been renting to a single, or multiple occupants that do not possess the right to rent, if the appropriate checks were not carried out by the property owner grave sanctions can be enforced on the landlord. In these instances a landlord can expect to receive a maximum civil penalty of £3,000 for each tenant that should not have been included in the tenancy. If the landlord is unable to show that the proper right to rent conduct was followed the may be served with a referral notice, stating that further action may be taken. Following this The Home Office is likely to issue the landlord with an Information Request, providing them with an opportunity to mount a statutory excuse, however since this would have arisen through neglect, no such stance could be taken by the landlord.
Of course a landlord is able to appeal such decision in which a civil penalty is issued. These grounds for an objection must be served by the landlord within 28 days of the notice being issued. However, if this appeal is not successful the landlord may be required to pay an additional amount associated with the costs the Home Office incurred in defending their decision. The landlord may also object to the civil penalty being imposed if they are not the party liable to pay the financial penalty, they have a statutory excuse, or the amount they have been ordered to pay has been miscalculated and is an excessive amount.
Ending a Tenancy Because of a Tenant’s Immigration Status
If a landlord suspects that one of the residents of their rental properties was staying within the UK, despite their immigration status preventing them from doing so, it is possible to reclaim possession of the rental property. One possible way in which this situation could be remedied is to come to a mutual agreement with the disqualified renter that the tenancy will need to be adapted to exclude them, essentially requesting that they leave the property and surrender the existing tenancy agreement.
On occasion the landlord may receive a Notice of Letting to a Disqualified Person from the Home Office. As the name of the notice may suggest this is simply a warning to the owner of the rental property that they have illegal residents and further action may need to be taken for them to take possession of the rental. It is imperative that the landlord safeguards this correspondence as it is likely that they will later be dependent on this when issuing a copy to the tenant or during a potential court cases. As can be expected, if the notice is issued from The Home Office this enables the landlord to take steps in ending the tenancy with the disqualified period, with this being possible even without a court order in some cases.
It is also worth mentioning that The Home Office doesn’t exclusively notify the landlord in this situation, and will inform the appropriate tenant that a notice has been sent; in such an instance it is important to direct the tenant to the Home Office for appeal if they wish. This will be accomplished through the tenant being issued with a “Minded to serve” letter, a request from The Home office that the resident of the rental property supplies them with ample evidence that they have ample right to rent within the UK.
If the landlord proceeds to take action against the disqualified person then they will be required to serve them with a Notice of Eviction and End of Tenancy, under section 33D if the Immigration Act 2014. This notice established a strict date by which the tenant is legally obligated to vacate the property, if the resident of the rental property has not returned possession to the own by the expiry of this deadline, “the landlord may peaceably re-enter the property to take possession of it.”
Making the repossession process significantly more efficient for landlord in a situation where the all residents of a property are disqualified people the notice further states that,“ The landlord does not require a court order to repossess the residential premises providing all occupiers are named in the landlord notice served under section 33D as disqualified from renting.” Typically when this notice is served by a landlord the tenant will have 28 days in which to vacate the rental property. If they fail to do so in this time the landlord is able to reclaim the property with the assistance of high court enforcement officers, or through peaceful means such as changing the locks as to deny entry to the disqualified person.
Section 8 and Section 21 Notices and Right to Rent
Providing that the landlord has issued the tenant with a Notice of Eviction and End of Tenancy and yet they have still proved reluctant to surrender possession of the rental property to the owner, the landlord is still able to pursue the occupant through more “traditional” means of eviction, specifically through a section 21 or section 8 notices.
If the fixed term of the rental agreement has expired, or is due to end soon, typically landlords that wish to seek possession of their rental property will issue the tenants with a section 21 notice. Whilst the specific amount of notice required to be given is changing somewhat due to the coronavirus, once this period has expired, along with the tenancies fixed term, the tenant should have moved on from the rental. If after this the tenant has still chosen to remain in the rental the landlord is able to gain a possession order from the courts.
Alternatively a landlord is able to serve their tenant with a section 8 notice. Unlike a section 21 notice, when a rental property owner serves the tenants with a section 8 notice they must provide the specific grounds upon the eviction is based, usually a specific breached term of the rental agreement such as excessive rent arrears. Under section 2 of the Housing Act 1988, a landlord is able to evoke a section 8 notice regardless of if the agreed upon fixed term has come to an end. As mentioned the landlord will need to cite the specific “grounds” upon which the tenancy has violated the terms of the tenancy agreement. To this end, it a disqualified person is refusing to vacate the property the landlord will need to rely upon ground 7b of the act. This ground will enable to landlord to reclaim possession as this is a mandatory ground; however, the court could also enforce a transfer of the tenancy to exclude the disqualified tenant.
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