INDUSTRY NEWS FEBRUARY 2016
LANDLORDS TO ENFORCE TENANTS RESIDENCY TEST
The Immigration Act 2014 provisions that requires private landlords to check the immigration status of new tenants before granting residential tenancies is now in force. It commenced from 1st February 2016.
The new law obliges landlords to request documents from their prospective tenants to show that they have the legal right to live in the UK. The legislation will only apply to new tenants; so there is no need to check your existing tenants although checks will be required when renewing a tenancy.
Under the new legislation, you as a landlord or your agent must check documentation of anyone who applies to rent a residential property. The checks must be carried out on all potential adult occupiers of the property and must be made before the tenants move in. Essentially, we reckon that there four simple steps landlords must adopt to meet the requirement.
- Establish who will be living in the property
- Obtain original version of residency documents from all adults occupiers
- Verify the documents in the presence of the prospective tenants.
- Make copies of the documents, date the same and keep safe.
A right to rent user guide published by gov.uk stipulates a wide range of documents that can be deemed acceptable to landlords under the scheme. They include current or expired passport or national ID cards for British citizens, EEA and Swiss nationals and valid passports endorsed with leave to stay and other biometric documentation in the case of national of other countries. The legislation states that you must keep the documents for the duration of the tenancy and for a minimum period of 12 months after the tenancy has ended. All documents must be kept in a safe and secure manner and destroyed within 6 years.
In a situation where a prospective tenant cannot produce the required documents but they have an ongoing application with the Home Office regarding their residence status, then it is possible for the Landlord to request a right to rent check. The Home Office should then issue a clarification by way of affirmation or otherwise within 2 working days.
Letting agents can agree to take on the responsibility of carrying out these checks and ensuring compliance with the legislation. Provided they have agreed to do so in writing, then they will be liable for the penalties for any breach. However, it remains the responsibility of the landlord to ensure that a tenancy is not signed off until the agent has confirmed the checks have been made and that they are satisfied that the prospective tenant has a right to reside in the UK.
The Act prescribes stiff penalties for breach of the legislation. A fine of up to £3000 per tenant is payable. However as long as you have carried out the steps enumerated above to ensure compliance and carried out a recheck every 12 months where the tenant has a time limited right to rent then you will have what is called a ‘statutory excuse’ which protects you from incurring a civil penalty.
Although landlord groups have voiced concerns about adding to their already burgeoning compliance burden and seemingly performing a role ordinarily reserved for the Home office, residential landlords must be proactive in putting systems in place for compliance especially in view of the very advanced methods employed by criminal syndicates to forge residency documents.