The 'right to rent' checking regime

By the time you read this, the new and controversial 'right to rent' checks will have become mandatory for all occupiers of rented property in England. The obligation to perform 'right to rent' checks was established by the Immigration Act 2014 and since December 2014 has been trialled in the West Midlands. After winning the election in May 2015, the Conservatives announced the roll-out of the scheme throughout England (although not in Wales or Scotland). The checks became mandatory on 1 February 2016.

Needless to say, this has not been welcomed by landlords associations, which are unhappy about the additional bureaucracy (and potential penalties) for landlords. Many consumer organisations also fear that the main result will be discrimination against potential tenants. Indeed, the shadow home secretary, Andy Burnham,
has attacked the checks as being a modern-day equivalent of the 'no dogs, no Irish, no blacks' signs seen in boarding-house windows 50
years ago.

However, the requirement is now upon us, so let us take a look at some of the main points for those affected, including landlords, letting agents, people renting rooms to lodgers in their own homes, and tenants who sublet, to consider.

Occupiers over 18

Every occupier over 18 must be checked before being allowed into occupation. You need to check not just the tenants but also all other adult members of their household (children are exempt but you should get proof of age of teenagers).

To know who to check, you will need to know who the occupiers of the property are going to be. It is best to name them all in your tenancy agreement and prohibit other occupiers, apart from temporary guests.

There are some exceptions to the new checking regime. The main exceptions are:

• Holiday lets for up to three months (for longer periods, checks must be carried out);

• Nominations from local authorities (e.g. under their homelessness duties);

• Mobile homes;

• Tied accommodation; and

• Some student accommodation.

In addition, hospitals, care homes, hospices, hostels, and Home Office refuge accommodation for migrants are mostly exempt, as well as some homelessness projects.

Records and ID documents

The main aim for landlords should be to be able to prove that the checks have been carried out properly - or, in other words, 'damage limitation'. Landlords are not expected to act as immigration officers: it is sufficient to show that they have complied with the rules. However, this means knowing what the rules are, and retaining sufficient proof of compliance in case this is ever requested by the Home Office.

Therefore, everyone who carries out the checks - whether this is the landlords themselves or their authorised agents - must be familiar with the guidance published online by the government.

It is particularly important to read and follow the user guide for 'right to rent' documents. Any landlord passing a document which is clearly at odds with this guidance will be considered to be in breach and potentially liable for the penalty. However, we are told that landlords are not expected to be forgery experts, so as long as the ID documents provided appear on their face to be compliant, the landlord should have fulfilled their obligation.

Things to watch out for include:

• Discrepancies in the dates given in the paperwork;

• Whether the appearance of the person being checked matches the photo on the ID;

• Documents in poor condition - this may be an attempt to disguise a forgery; and

• Suspicious circumstances - for example, a single person renting a large house. Are they looking to bring in unauthorised occupiers later?

When carrying out the check, you will need to keep a record to prove that it has been done, and also a record of the questions asked and answers received in respect of any suspicious circumstances.

The ID documents themselves then need to be photocopied and kept with the attendance note of the check and the other documentation. Electronic copies are allowed but you may need to prove that they have not been tampered with.

I am not going to discuss here the details of the required documents (which are available online), save that there are two lists: list A and list B. Only one document is required from list A (which includes passports and European Economic Area ID cards). If no documents from list A are available, then two of the documents from list B will suffice.

Risk of discrimination

While landlords are not supposed to use the right to rent' checking regime as a reason to discriminate, this is one of the big problems with the scheme, and information coming out of the West Midlands pilot shows that some landlords are indeed discriminating against applicants.

Inevitably, many landlords will prefer tenants able to produce, for example, a UK passport that can be easily checked, rather than a tenant whose paperwork consists of unfamiliar ID documentation which they will have to carefully scrutinise and compare with the online guidance (or risk being found in breach), or for which they will need to use the government's landlord's checking service, which will delay the process for up to two days.

Tenancy agreements

All landlords, letting agents, and solicitors should review tenancy agreements in the light of the new law, as there are some important implications. For example:

• Conditional clauses: Where tenancy agreements are signed before the 'right to rent' checks are done (which is often unavoidable where tenants are coming from abroad), the tenancy agreement needs a clause making it conditional on a satisfactory check being carried out prior to the tenancy start date;

• Household member details: It is now advisable to specifically list everyone who will be resident in the property, in addition to the tenants themselves, and to prohibit any other occupiers (other than children and short-term visitors); and

• Data protection: Tenancy agreements should state, for the record, that by law ID details must be held by landlords for the duration of the tenancy and up to 12 months after the tenancy ends, and also that tenants' and occupiers' details may be passed over to the Home Office in certain circumstances.

Penalties for landlords

At present, landlords suspected of having breached the regulations will be asked to provide details, and if these prove unsatisfactory will be sent a civil penalty notice requiring them to pay a fine of up to £3,000 per person (£1,000 for a first offence), with lower fines of £80 or £500 for lodger landlords.

However, there are more stringent penalties in the Immigration Bill currently going through parliament, including custodial sentences.

Many, if not most, landlords will not want to deal with these checks, but happily the rules provide for agents to be able to do them instead. If there is a written agreement for an agent to carry out 'right to rent' checks, then the penalties for non-compliance will be borne by the agent rather than the landlord.

Most professional landlords and agents will not be fazed by these new rules as they generally carry out careful ID checks anyway. In the vast majority of cases, tenants will be of British nationality and all that will be needed is a copy of their passport and confirmation that no unauthorised occupiers will be living in the property.

However, worryingly, the new rules probably mean that it will be harder for people with non-standard immigration status to obtain accommodation, particularly as there is a general shortage of housing, especially in large cities such as London.

I find it hard to see that there is sufficient overall benefit resulting from the new checking regime to justify the negative aspects such as increased bureaucracy for landlords (which may result in higher rents for tenants) and discrimination. The scheme will also cause problems for British nationals who do not possess a passport or other required ID documents, and there is the worrying possibility that information retained by landlords and agents could, if it fell into the wrong hands, be used for identity theft.

But the new rules are with us now, so we will just have to wait and see how they work out in practice. SJ

Tessa Shepperson is a lawyer and blogger on landlord and tenant law