Commercial and local authority landlords could benefit from urgently reviewing their legal options.
The Government has published Guidance for landlords undertaking right to rent checks during the Coronavirus (covid-19) pandemic (the Guidance).
As of 30 March 2020, temporary measures have been put in place to make it easier for landlords to carry out these checks.
When does the right to rent apply?
As a reminder, all landlords must check that a potential occupier has the right to rent before allowing them to occupy. This usually involves inspecting original documentation.
There are a number of exclusions including:
- Local authority landlords; and
- Private registered providers of social housing when letting accommodation pursuant to a local authority nomination under the Housing Act 1996.
What does the Guidance say?
The Guidance lists the following temporary measures:
- Landlords can accept a scanned or photographed copy of original documents for checks, which can be submitted by tenants via email or mobile app.
- Landlords can carry out checks via video call with the tenant and have them hold up the original documentation to the camera. This can then be checked against the digital copy.
- When recording the date of the check, mark with the following wording: ‘an adjusted check has been undertaken on [insert date] due to COVID-19.’
The Guidance states landlords must ensure the checks comply with the ‘Code of practice on illegal immigrants and private rented accommodation’, and that the prescribed documents under the ‘Right to rent document checks: a user guide’ are obtained. Landlords must contact the ‘Landlord’s Checking Service’ if the tenant cannot provide documents from the prescribed lists.
Where tenants have not provided original documentation, landlords must ensure they carry out retrospective right-to-rent checks on existing tenants who:
- commenced their tenancy from 30 March 2020 and where the temporary measures were used; or
- require a follow up right-to-rent check from 30 March 2020 and where the temporary measures have been used.
There will be an 8-week period to carry out retrospective right to rent checks once the temporary measures end.
The retrospective check-up should contain the following wording:
‘The individual's tenancy commenced on [insert date]. The prescribed right to rent check was undertaken on [insert date] due to COVID-19.’
As good practice, the landlord should ensure both the initial and retrospective checks are retained on the tenant’s file.
If the landlord discovers the tenant does not have sufficient immigration permission to rent, the landlord should make the report to the Home Office as soon as the retrospective check has been carried out and then consider what steps can be taken to end the tenancy. Action will not be taken against a landlord who has carried out the right-to-rent checks correctly as detailed above.
The importance of the right to rent
It is important to note that it remains an offence to knowingly rent out premises to a person who is not lawfully in the UK. The temporary measures do not provide a defence against a civil penalty for the duration of an individual’s tenancy.
The Home Office will provide an update in advance as to when the temporary measures will end. We shall follow up on this e-briefing once a date is known.
If you have any queries, please contact Nadira Khatun.
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