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August 5, 2015updated 01 Feb 2016 10:29am

The 'right-to-rent' scheme is dragging landlords to the frontlines of border control

By Spear's

Edward Burton on what property owners need to know (and do) about the government’s latest immigration crackdown

After news of the national roll-out of the ‘right-to-rent’ scheme, which requires landlords to check the immigration status of their tenants, many landlords will be understandably concerned at the imposition of a new set of checks that, on the face of it, seem to require relatively detailed knowledge of their tenants.

In summary, these measures will require landlords to check the immigration status of their tenants and that they have a right to live in the UK before renting residential property to them. There will be certain circumstances in which a landlord will need to pick up on a change in the immigration status of a tenant. Landlords failing to comply will be liable for a civil penalty of up to ’3,000.

These checks have been precipitated by a continued desire by government to be seen as taking action against those who live in the UK but have no right to remain. The scheme has been trialled in the West Midlands but it has been reported that this will now be rolled out nationwide.

The Home Office has published guidance on the implementation and nature of the scheme. The key point to note is that the guidance explicitly provides for landlords to pass the obligation to comply to an agent (which can be, but does not have to be, a lettings or managing agent for the property).

Those who have existing agents should therefore approach them to request details as to whether the scope of work covered by the agreement will extend to right to rent checks. Any landlord embarking on letting a property or who is in the process of acquiring a property to rent should be asking their lettings agent whether their services will extend to dealing with right to rent checks.

If they do not, the landlord may wish to consider appointing another specialist agent to undertake these checks for them if they do not have the required expertise to undertake the checks themselves.

Any such agreement to pass the responsibility for compliance to an agent needs to be in writing and should contain specific obligations in respect of the conduct of such checks. There are also a growing number of services which can be used by landlords to ascertain whether their tenants are in the UK legally as well as a ‘right to rent tool’ on the website.

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This new regime raises a number of issues. A significant question is what happens should the immigration status of a tenant change and a landlord be required to evict the tenant. There are currently reports that landlords will be able to regain possession of premises without a court order and following only a short notice period which considerably modifies the usual procedure in respect of evictions from residential property.

There are also proposals to raise the maximum penalty for non-compliance by landlords from the ’3,000 fine referred to above to a five-year prison term for persistent offenders. This would considerably raise the stakes in the event of non-compliance.

It is clear from some of the reports in the press that this is also becoming an intensely political issue with much debate over the rights and wrongs of the policy from a number of perspectives. There have been reports that some British citizens have fallen foul of the policy in the West Midlands and have been unable to access private rental accommodation as they were unable to afford a passport and did not have a birth certificate.

In addition, concerns have been raised that landlords will need to balance their obligations under the right to rent scheme against their obligations under anti-discrimination legislation.

There are clearly myriad issues thrown up by this policy. What is beyond doubt, however, is that landlords should be thinking carefully about the arrangements that they may need to put in place to ensure that they do not fall foul of these new regulations.

Edward Burton specialises in prime residential property at boutique private wealth law firm Maurice Turnor Gardner LLP

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