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.
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.