01st December 2014
Right to rent checks begin in the West Midlands
The right to rent checks have now been introduced in the West Midlands and it is imperative that private landlords and letting agents are fully informed of their duties.
These will apply to :-
- landlords and letting agents in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton
- all adults aged 18 and over living at the property
- new tenancy agreements starting on or after 1 December 2014
The right to rent checks include three distinct areas which will vary depending on the status of the tenant.
- Initial checks
- Follow up checks if appropriate
- Duty to report tenants to the UKVI
- Initial Checks
Landlords and letting agents must check any adult’s original documents before allowing them to live in the property. The original must be copied in the presence of the prospective tenant and retain a copy which must be dated and then retained for 12 months after the end of their tenancy.
Reasonable enquiries should be made to find out who will live in your property and a record kept of the questions you ask. You must check all adults who will live in the property, whether or not they are named on the tenancy agreement.
Failure to make these reasonable enquiries means that you may be held liable for the other adult occupiers if it turns out that they do not have the right to rent even if they are not named on the tenancy agreement.
If you make reasonable enquiries as to who will live in your property, and a person living in that property later moves someone in without your knowledge, that person will become the landlord for the purposes of the Scheme and will have responsibility for making the checks.
You will need to carry out a three step procedure to check a person’s documentation
- Obtain original documents
The acceptable original documents will depend on whether the tenant has a permanent right of residence or not. If he or she does then the list of acceptable documents is listed in list A if their right to reside is limited then it will be List B and follow up checks will be required
If the tenant does not have one of the documents in list A then group 2 of list A confirms a combination of documents which will establish a statutory excuse.
b. Check the documents
You must take reasonable checks to verify the original document you are checking is real. You must check the photo on the document resembles your potential tenant and that the dates of birth etc match with the information they have given you. You should also check for signs that the documents has been altered or tampered with.
If you follow these checks and the document turns out to be fake then as long as only an expert would have been able to tell that it was a false document you will be able to establish a statutory excuse.
You will not have a statutory excuse against a civil penalty if:
- You did not make reasonable enquiries to find out who will be using your property as their only or main home;
- You cannot provide evidence of having checked the documents before the tenancy commenced; or
- You have accepted a document which clearly does not belong to the holder; or
- You have conducted a check and it is reasonably apparent that the document is false; or
- You have conducted a check and it is apparent that the tenant’s permission to be in the UK has expired; or
- You have accepted a document that clearly shows that the person does not have the right to be in the UK
c. Copy and retain
Once you are satisfied that you have seen a genuine document which proves that your tenant has a right to rent then you should make a copy of the original document and date the copy. You should then for those with no time limit on their stay retain the documents on their file throughout the duration of the tenancy and then for a 12 month period following.
2. Follow up checks
Some people that rent from you will have time limits placed on their stay by the government. For those people you will need to carry out further checks during the period of their tenancy. You must take a note of the expiry of the person’s visa. You must then ensure that you do a follow up check:-
On or shortly before the date that a person’s right to be in the UK expires; or 12 months after the original check, whichever is the longer period.
3. Reporting duties
If the follow-up checks indicate that an occupier no longer has the right to rent in the UK, the landlord does not need to evict them, but should make a report to the Home Office. This must be done as soon as possible after it becomes clear that the person no longer has a right to rent.
The Home Office should also be informed if you are presented with a document that you believe to be false or indeed if you are unsure of which documents can be accepted.
Failure to comply with these duties and renting to those without a right to do so will result in civil penalties being given to landlords and letting agents. This means landlords and letting agents could face a civil penalty of up to £3000 per adult found not to have the right to rent.
You should seek legal advice if you have any doubt about whether a prospective tenant has the right to reside in the UK. We can assist you through the process of ensuring that you have the correct procedures in place to prevent civil penalties.