Top tips for landlords on conducting right to rent checks

The ‘Right to Rent’ legislation is one step closer to being rolled out across England, after MPs backed the scheme as part of the second reading of the Immigration Bill in Parliament last month.

However, the pilot has thrown up some potential serious issues for both landlords and tenants. Research from the pilot shows that landlords were discriminating between applicants on the basis of their background and were preparing to turn away tenants, just because they had a foreign accent.

The Joint Council for the Welfare of Immigrants (JCWI) surveyed landlords and tenants in the pilot area following the roll-out, and found that tenants were being also charged an extra £100 in administration fees. The survey also indicated that landlords were more hesitant to offer viewings to anyone needing more time to provide paperwork, meaning migrants are more likely to be turned down.

Under the scheme, landlords are also at risk that in checking up on tenants, they could be accused of discrimination under the Equality Act. Several landlords in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton, who were the first to be signed up to the pilot scheme, have already faced fines.

Here are some tips on conducting initial right to rent checks:

1. Establish the adults who will be living in the property. Be vigilant and consider whether the number of occupiers is reasonable for the size and type of property. Agents should keep a record of any enquiries and responses.

2. Obtain original versions of acceptable documents which prove right to rent. For unlimited right to rent occupiers, checks can be made at any point prior to a tenancy agreement being made. For time-limited right to rent occupiers, checks should be made up to 28 days prior to the tenancy agreement being granted.

3. Check the documents in the presence of the holder. This can be done either in person, or via a live video link and agents must check that the documents appear genuine and belong to the occupier presenting them. Pay close attention to photographs and ensure details such as date of birth are consistent across documents. Also check they have not expired and explanations for any discrepancies are recorded.

4. Make copies of all documents and retain them with a record of the date checked. Copies should be made in a format that cannot be edited later, e.g. photocopied, and retained securely either electronically or in hard copy.

5. Carry out follow up checks on time-limited right to rent occupiers.
Conduct them in the same way as the initial checks, retaining copies of any new documents. If an occupier no longer has the right to rent, the agent does not need to evict them, but should make a report to the Home Office in writing by post or email.

6. What if the occupier says they have the right to rent but cannot prove it?

If they cannot provide proof because of an ongoing immigration application or because they have a discretionary right to rent, agents can request a check from the Home Office. Confirmation will be sent within two working days.

7.Rentals that are excluded

These include local authority tenants; tied accommodation; student accommodation where a student has been nominated by a higher educational institution; and long leases (term of 7 years or more)

Jane Morris, Managing Director of PropertyLetByUs.com comments: “The research shows that some legitimate tenants who cannot easily identify themselves using a British or EU passport are finding it harder to secure somewhere to live.

Under the pilot scheme, would-be tenants have to produce evidence from a checklist of documents that they have permission to be in the UK and landlords have to take a copy for their records.

Before dismissing a prospective tenant, it is important that landlords make all the necessary checks. The legislation requires landlords to carry out extensive checks to ensure a tenant has British, EEA or Swiss nationality. If the prospective tenant is of a different nationality, their visa or passport will have to be checked to see if they have a right to rent. Landlords are also required to notify the home office if the tenant’s visa expires.

The penalties for ignoring the new legislation will be severe. For the first time an agent/landlord breaches the rules, a fine of £1,000 per illegal adult occupier will apply. If they have already been in breach within the last three years, a fine of £3,000 per adult will apply.”