Preparing for the Right to Rent Checks

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The Right to Rent checks will be upon us very soon - as they will need to be carried out by all landlords (or their agents) for new tenancies created on or after 1 February.

Most agents and many landlords will already carry out ID checks as a matter of course.  Is there anything more you need to do?  

Here are a couple of points and some tips on tricky situations:

Study the Online Guidance

The Home Office has recently uploaded more detailed guidance onto the website which you will find linked from here.  You should study this carefully and make sure you are compliant.

For example there is considerable detail provided now about the appearance of the documents you need to check in the Right to Rent Documents Checks User Guide.  You need to follow this carefully.  Although the Government have stated that they do not expect landlords to be experts in forgery - if you pass a document which is clearly different from the illustrations in the guide you are likely to be vulnerable to the penalty fine (£1,000 per person for a first offence and thereafter £3,000).

 Other things to watch out for include

  • Discrepancies in the dates given in the paperwork
  • The appearance of the person being checked - does it match 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?  

Make sure you are not discriminating

There is a big temptation for landlords (and agents) to avoid foreign looking applicants and just choose England tenants where the checks will be simpler.  Few landlords or agents will want the job of scrutinising unfamiliar foreign paperwork with the prospect of a hefty fine if they get things wrong.

However discrimination is illegal and can get you into trouble.  

You also need to be careful to avoid indirect discrimination - for example by requiring certain ID documents which will be difficult for certain classes of people.

Make sure you check everyone who will be living in the property

You don’t have to check underage children (get proof of age of teenagers though) but you do need to check everyone else - whether or not they are named in the tenancy agreement.

So it is a good idea to nail down in the tenancy agreement exactly who will be living in the property and prohibit anyone else staying there, apart from short term visitors.

Dealing with limited companies

What is the situation when you do a company let?  There will be no (living) tenants so how can you carry out the right to rent checks?  

The answer is that it will almost always be the responsibility of the company.  However it is a good idea to put this in writing and maybe in the tenancy agreement.

Lets to overseas applicants

What about the situation where you are signing a tenancy agreement with someone who is abroad?  Obviously they will not be able to let you see their original passport as they will need it for travel.

The answer here is to get what information you can and ideally also speak to them via Skype with video view.  However the tenancy agreement must be conditional upon satisfactory right to rent checks before they move in.

Your tenancy agreements

As you can see there are implications for your tenancy agreements in all of this.  In particular:

  • Ensure tenancy agreements signed before checks are done are conditional
  • Name everyone who will be living in the property and prohibit any other occupiers (apart from short term visitors) without your specific approval (although the clause should state that this permission must not be withheld unreasonably)
  • Include data protection clauses stating that you will be holding information and, in certain circumstances, passing it over to the Home Office.

And finally

Probably the most important thing is to read all the online guidance and keep checking the website to make sure you have not missed anything which may be loaded up later.  You are expected to have read all the online guidance so make sure you do!

 Note that one of the talks in our forthcoming Landlord Law Conference (sponsored by TDS) in May will be on Right to Rent checks.  Find out more here.

Tessa Shepperson is a specialist landlord & tenant lawyer and runs the online service and also - where you can find out more about your obligations under the Right to Rent rules.

Posted by Tessa Shepperson on 27 January 2016

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