The Right to Rent

On 1st December 2016 certain elements of The Immigration Act 2016 came into force that complemented already-existing provisions of the The Immigration Act 2014. The net result is that we now have a complete view of how the government expects the ‘right to rent’ obligation on landlords to operate.

For all new and renewed tenancies in England starting from 1st February 2016 onward a landlord will be liable for fines or (in the case of repeat and purposeful offenders) imprisonment if they are knowingly, or have reasonable cause to believe that they are, renting a property to tenants who have no right to reside in England.

The only defence a landlord has is that they carried out the relevant checks on all tenants on or over the age of 18 to ascertain whether they had a right to rent.

There are two types of right to rent:
-    permanent (for UK, EEA and Swiss Nationals or those with permanent leave to remain or reside); and
-    time-limited (for those with a right to remain/reside that comes with a time limit)

If a permanent right to rent is established then no further checks need be carried out. If a time-limited right is established then checks need to be done again before that time limit runs out. If a check fails on a tenant already in-situ then the landlord is obligated to report the tenant to the Home Office.

For full details on how a landlord is to establish a ‘right to rent’ and the checks that need to be run, the government has provided a web page.

One of the most important things to note for landlords is that the obligation (and therefore the liability) for running these checks can only be passed on to a letting or managing agent specifically by agreement in writing. Therefore most agents will likely not be agreeing to take on this responsibility or, if they do, only for the initial check and not the subsequent ones. Further, if a tenant fails a right to rent check and the agent informs the landlord of the failure, it then becomes the landlord’s responsibility again to evict the tenant.

If a tenant (or tenants) does not have a right to rent, or the right to rent expires, then the Secretary of State will issue the landlord with a letter demanding that the landlord evict the tenant. If the landlord wishes to avoid fines or imprisonment then he will need to issue a s8 Notice, citing a newly-created ground (7B), and proceed to Court to secure a possession order if the tenant fails to leave voluntarily. All of this, of course, will be at the landlord’s cost.

However if all the tenants in the property do not have a right to rent then the landlord’s powers are hugely increased. In that case the landlord can give a 28 day Notice to Quit and, on expiry of the Notice, use reasonable force to try and evict the tenants without a court order. If the tenants refuse to leave then the Notice to Quit is directly enforceable by High Court Enforcement Agents. However, given that the landlord would need to be sure that every tenant in the building had no right to rent, and given the fact that this additional power seems to fly directly in the face of established property law principles for unlawful eviction, it still seems a risky prospect for landlords.

What if the landlord, or indeed the tenant, disagree with the letter from the Secretary of State? Quite simply, no provision has been put in place for this.

Further, it has been made quite clear that landlords are not permitted to use the ‘right to rent’ obligation as an excuse to discriminate in any way. In other words, a tenant with a limited right to rent should not be treated any differently to one with a permanent right to rent.

And finally, the definition of 'tenant' in the Immigration Acts seems to have been broadened considerably beyond its usual definition, and seems to encompass any form of residential let. Therefore there is a significant argument to say that these checks are also mandatory for licencees, lodgers, service occupiers etc, even though they specifically fall outside of the definition of 'tenant' for all other purposes.

If you are a landlord who has been provided with a letter from the Secretary of State to evict, then we are happy to assist. Please contact Oliver Kew on 01189 559612

Published on 08/12/2016