LAYTONS
The Right to Rent
LAYTONS Our Sectors • • • •
Technology, Communications & Digital Media Construction, Land & Planning Personal Affairs, Private Wealth & Philanthropy Retail & Hospitality
Our Expertise • • • • • • • • • • • •
Banking & Finance Charities Commercial & Corporate Data Protection & Information Disputes Employment & Immigration Family & Matrimonial Insolvency & Restructuring IP & Technology Real Estate Tax Trusts, Estates & Private Client
The Right to Rent Since February 2016, landlords have been under a legal obligation to ensure that their tenants have the right to rent property. This scheme has largely been viewed as a success by the Home Office. However, the Government has felt that the present sanctions are insufficient to deter those “rogue� landlords who continue to ignore their obligations and flout the rules. As a result, from 1 December 2016 new criminal sanctions will apply in the cases of serial offenders.
Luke Arnold Solicitor | Disputes luke.arnold@laytons.com +44 (0)1483 407 000
Simon Foster Partner | Disputes simon.foster@laytons.com +44 (0)1483 407 000
Laytons | The Right to Rent
The Current Position Anyone who lets private property in England is affected by the Right to Rent Scheme. Initially introduced in the Immigration Act 2014, it requires all landlords (as well as people subletting or taking in lodgers) to carry out checks on all new adult tenants before letting property to them.
These checks are for the most part straight-forward and a
Whilst landlords should of course be alert to acceptable
matter of common sense. They require the landlord to obtain
documents being forgeries, they are not expected to be
and keep a certified copy of what is referred to as a tenant’s
forensic experts and there is a statutory defence if it does later
“Acceptable Documents”. Such documents are wide ranging
transpire those documents were forgeries provided that the
and include passports, driving licences, UK immigration
landlord can show that it was reasonable to place reliance on
documents and various letters from accredited sources (such
those documents.
as universities, employers or even British passport holders working in ‘acceptable professions’). A full list is available on
Those landlords who fail to carry out checks, or make further
the Government’s website or by clicking here.
checks in the event of a time-limited permit, are currently running the risk of being issued with a penalty notice by the
Landlords should take particular care in situations where a tenant’s permission to reside in the UK is time-limited since these checks will need to be repeated as appropriate. A landlord’s obligation is to carry out a reasonable check of the tenant’s relevant acceptable documents and to retain copies (which is good practice in any event) and as long as they have done so, they will have a statutory defence in the event that it is discovered that the tenant does not in fact have right to rent.
4
Secretary of State and being fined up to £3,000 per tenant.
Laytons | The Right to Rent
The New Criminal Offences As of 1 December 2016, new criminal offences have been implemented to target unscrupulous landlords and agents who fail to carry out the above checks and/or take steps to remove those without the right to rent from their property. These new offences can be broadly categorised as either a ‘failure to act’ or a ‘failure to notify’ and similar offences have been introduced against both landlords and agents.
The first offence is the failure to act which arises when: •
the property is occupied by an adult who is disqualified from renting in the UK
•
the landlord or agent knew or has reasonable cause to believe that that adult is disqualified
•
the landlord or agent has not taken reasonable steps within a reasonable period to terminate the tenancy agreement.
The second offence, being the failure to notify, arises when: •
the adult becomes disqualified during the course of a tenancy
•
despite that disqualification, the adult continues to reside in the property
•
the landlord does not notify the Secretary of State as soon as reasonably practicable
The potential penalties for failing to take action are particularly severe and include further fines and sanctions under the Proceeds of Crime Act 2002 and even imprisonment for up to five years.
5
Laytons | The Right to Rent
Eviction of Illegal Tenants A slight silver lining for landlords and agents is that the changes do now make it easier to evict tenants who were occupying their properties before the introduction of the right to rent scheme and were later found to be disqualified. These changes create a new procedure for evicting illegal tenants as well as increasing a landlord’s ability to commence possession proceedings under section 8 of the Housing Act 1988.
If a landlord becomes aware that a tenant is disqualified
These changes have given landlords a far greater ability to
from renting in the UK but is currently residing in one of
evict illegal tenants although they should carefully consider
their properties, they are able to apply to the Home Office
whether the section 21 or the section 8 procedure will lead to
for a Notice stating that that occupier has no right to rent.
a quicker resolution
A new prescribed form has been introduced which can be sent to the illegal tenant along with the Notice which requires
The greater sanctions brought in by the Immigration Act
the tenant to vacate the property on 28 days’ notice. If the
2016 will, understandably, be the cause of some concern
tenant refuses to vacate the property then that notice can be
for landlords and the advice must be that if landlords have
enforced as if it were an Order of the High Court.
any concerns they should reassess all individuals who they currently let property and consider whether further
Furthermore, immigration status was not previously a ground
investigations are necessary. In the event of doubt, specialist
for eviction under section 8 of the Housing Act 1988, but now
legal advice should be sought.
it is a mandatory ground for possession of assured shorthold tenancies. The prescribed section 8 form has been amended
Whilst it remains to be seen how the rules are applied in
to include reference to this new ground 7B and must be used
practice, the Government has been quite clear that the new
as of 1 December 2016. If a landlord seeks possession on this
sanctions are aimed at those landlords who openly flout the
new immigration ground, they are able to commence court
legislation to exploit migrants rather than honest landlords
proceedings within 2 weeks of the date the notice is served.
acting in error.
6
Sectors
Expertise Construction, Land & Planning
Disputes
Real Estate
Guildford
London
Manchester
Ranger House, Walnut Tree Close Guildford GU1 4UL +44 (0)1483 407 000 guildford@laytons.com
2 More London Riverside London SE1 2AP +44 (0)20 7842 8000 london@laytons.com
22 St. John Street Manchester M3 4EB +44 (0)161 214 1600 manchester@laytons.com
laytons.com
Š Laytons Solicitors LLP which is authorised and regulated by the Solicitors Regulation Authority (SRA Nº 566807). A list of members is available for inspection at the above offices.