Blog - 03/02/2016
Does your tenant have the right to rent?
The Immigration Act 2014 (IA) prohibits private landlords of residential property from allowing certain individuals to occupy their properties. This prohibition is based on the immigration status of a prospective tenant and/or occupier. Failure to comply with the legislation may result in a fine of up to £3,000.
Originally, the provisions of the IA were only applicable in certain areas within the UK. However, as of 1 February 2016, where a tenancy is granted for a term of less than 7 years, all private landlords must undertake a “right to rent” check against all new tenants and all occupiers.
Landlords and agents are required to check the immigration status of prospective tenants and other authorised occupiers, to determine whether the tenants and occupiers have the right to be in the UK. Provided that the prospective tenant and occupiers have leave to remain in the UK which is not subject to conditions preventing occupation of the property, the tenant will have a right to rent.
Undertaking a right to rent check requires a landlord/its agent to:
- identify all adults who will be occupying the property, whether or not the individuals are named within the tenancy agreement;
- see the prospective tenants’ and occupiers’ original identification documents;
- ensure these documents are genuine in the presence of the tenant/occupier (i.e. via a face-to-face meeting or video conference); and
- keep copies of all identification documents for the duration of the tenancy agreement and for at least one year thereafter.
Detailed guidance on how to undertake a document check (including what documents are acceptable) can be found on this link here. Further, where the Home Office has an individual’s documents or the individual has special permission from the Home Office to rent in the UK, a landlord can check the prospective tenant’s/occupier’s status via the Landlord Checking Service, see link here.
The requirement is that a check must be undertaken against all tenants and occupiers entering into new tenancies on or after 1 February 2016. Thus, where a landlord is renewing a tenancy after 1 February 2016, checks are not required provided that the renewal is (a) between the same parties and (b) there has been no break in the tenant’s occupation of the property.
Where a landlord appoints an agent, there must be a written agreement between the parties in order for the agent to be liable for a failure to comply with the legislation. Where such a written agreement exists, the agent will be responsible for undertaking the necessary checks and reporting the outcome to the landlord/Home Office where necessary, failing which, the agent will be liable for a penalty. However, where an agent establishes that a prospective tenant/occupier does not have the right to rent and reports the matter to the landlord prior to a tenancy being granted, the landlord will become liable for the penalty if the tenancy is granted to an individual who does not have a right to rent.
For further information regarding this topic or any other property matter, please contact Brenna Baye – Associate, or any member of the Property team at Edwin Coe.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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