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Are you sure your tenants have a right to rent?

by | Nov 10, 2016 | Brokers, Clients

By Rose Jinks, Just Landlords

passportsAll landlords must be aware of their responsibilities under the Right to Rent legislation, particularly as from December it becomes a criminal offence not to follow the rules.

On 1st February this year, the scheme came into force across England. Under the Immigration Act 2016, residential landlords are required to check the immigration status of all prospective adult tenants.

The Right to Rent scheme was introduced to help prevent illegal immigrants from living in private rental homes. At present, the law only applies to private landlords and letting agents in England. However, it is expected that the scheme will be rolled out across the rest of the UK in the future.

If you use a letting agent to manage your property, you can transfer liability to the agent in writing to ensure that they are responsible for conducting the checks on your behalf and are therefore liable for any penalties.

If you manage the property yourself, you must conduct the checks in the correct manner in order to stick to the law and avoid penalties. Follow these steps:

Step 1 – Obtain original documents

You must collect original documents from all prospective adult tenants, regardless of whether they’ll be named on the tenancy agreement and regardless of their nationality. If the tenant would be living in the property as their only or main home, you must check their right to rent in the UK. Remember that passports aren’t the only documents that pass the checks – there are many combinations of documents that prove a person’s right to rent. These can be found on the Government’s website.

Step 2 – Check the document

If there is no time limit on the individual staying in the UK, you can conduct the document check at any point before the tenancy begins. You must check that the document proves the prospective tenant’s right to rent with them in front of you. However, it is not your responsibility to spot forged documents.

Step 3 – Make a copy

You must make a copy of the original document, either by photocopying or photographing it. You must also make a note of the date that the check was completed. You should keep the copy safe and retain it for the length of the tenancy and for one year after.

In most cases, this is all that you will need to do, as most tenants will have the right to stay in the UK indefinitely.

Exemptions

Of course, there are exemptions to the law. For example, you do not need to check the immigration status of anyone who would be living in your property that is under the age of 18. If you are unsure of someone’s age, check to confirm that they are under 18.

Additionally, there are certain property types that do not require Right to Rent checks. These include: holiday homes, accommodation arranged by local authorities, care homes, hospitals, hospices, mobile homes, tied accommodation and student halls of residence.

If you own a property that is let to students but is not a halls of residence, you must make the checks. However, you will be exempt from the scheme if the university nominates the student(s) to live in your property.

Visas

Some of your prospective tenants may be living in the UK on a short-term basis, particularly overseas students. If you check someone’s visa and it has an expiration date, you must remember to make another check in the future.

These additional checks should be made either 12 months after the initial check, or just before the visa expires (whichever is longer). Therefore, the minimum time between checks would be 12 months.

If the tenant fails the second check, as they do not have the right to rent anymore, you must make a report to the Home Office. You will be given a reference number, which is evidence that you have fulfilled your legal responsibility.

Penalties

Currently, landlords and letting agents that do not fulfil their Right to Rent duties are liable for a civil penalty. However, from 1st December 2016, failure to comply with the scheme will become a criminal offence.

If it is found that your tenant does not have the right to rent in the UK, you can use the defence that you have tried to terminate the tenancy, if you can prove that you have and if you took such steps within a reasonable period from finding out that your tenant cannot legally rent in the UK.

Additional information

You are not required to report any documents that you believe are fake, but you can pass the information on to the Home Office.

In some cases, a tenant will have the right to rent in the UK, but cannot prove it because they have lost their documents or sent them to the Home Office due to an outstanding application. In these cases, you can use the Home Office’s landlord checking tool.

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