Law guide: Landlords

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Right to rent check and references

Right to rent check and references

Contents

The landlord is responsible for making sure that proper checks are carried out on prospective tenants (even if they use an agent).

The Right to Rent

The Immigration Act 2014 places an obligation on the landlord of residential premises to check that the occupiers have a right to live and rent property in the UK. The Act came into force on 1 February 2016 and only applies to England.

Before you agree to rent out a property you (or your agent) must:

  • Check the passport (or other documents listed in the Act) of all occupiers aged 18 or over
  • Confirm that all occupiers (aged 18 or over) are nationals of the UK, or EEA or Switzerland, or have a right to live and rent property in the UK
  • Keep a copy of the passport (or other documents) you've checked
  • Make reasonable enquiries to ensure that the property isn't occupied by anyone who doesn't have a right to rent, even if they're not named as tenants

If the occupiers have a time-limited right to remain in the UK that expires during the term of the tenancy, you must follow up to check that their right to remain has been renewed.

You must keep copies of the documents you receive from the occupiers showing their right to rent. You must make reasonable enquiries to ensure that the premises is not occupied by anyone who does not have a right to rent, regardless of whether they are named as tenants.

For more information, see the Home Office's Right to rent immigration checks: landlords' code of practice.

Penalty notices

You can be given a penalty notice requiring you to pay a fine of up to £3,000 if you do not carry out the required checks, and allow someone without the right to rent to occupy your property. You would be liable for this fine if you allow a person with a limited right to rent to continue to occupy the property after their right to rent has expired.

If you have an agent managing the property, you can pass the responsibility for carrying out the right to rent checks to them, but this should be expressly stated in your agency agreement. You may have a defence if the agent agreed to carry out the checks but failed to do so, and you were unaware that the tenants didn't have the right to rent.

You would also have a defence if you notify the Secretary of State that the tenant's limited right to rent has expired where this has happened during the tenancy.

Landlords and agents could also be guilty of a criminal offence for failing to comply with the requirements.

Landlord's obligations if the tenant has no right to rent

Since 1 December 2016, under the Immigration Act 2016, if a landlord discovers that the tenant doesn't have the right to rent (e.g. if it has expired), they must take steps to have the tenant leave within a reasonable period of discovering this. Otherwise, they will be guilty of a criminal offence.

The landlord should negotiate with the disqualified tenants to see if they will agree to leave, or serve a section 21 notice to recover possession if the tenancy is an assured shorthold tenancy.

Alternatively the landlord should consider whether there are any other applicable grounds under the Housing Act 1988 to end the tenancy, including Ground 7B which has been added by the Immigration Act 2016. Ground 7B allows a landlord to terminate an assured tenancy if they have received a notice from the Secretary of State that any of the tenants, or any of the persons occupying the property, don't have a right to rent.

If Ground 7B applies to all the tenants, the landlord can use the prescribed form for this purpose (Notice of Eviction and End of Tenancy under s 33D(3) of the Immigration Act 2014) to give the tenants at least 28 days' notice to leave the property. The notice is treated as a notice to quit and ends the tenancy without the need for an order of the court. However, the landlord must not evict the tenants forcibly and should apply to the court for an order for a warrant of possession if the tenants don't leave, so that the court bailiff can carry out the eviction. This notice doesn't apply if some of the tenants have a right to rent. Alternatively the landlord can use a notice under section 8 of the Housing Act relying on Ground 7B, and then apply to the court for an order for possession.

Criminal immigration offences

The landlord will commit a criminal offence if they allow their premises to be occupied by a person without the right to rent, if the landlord knows, or has reasonable cause to believe, that the occupier hasn't got the right to rent.

It is an offence both to allow the tenant to start occupying the property without the right to rent (pre-grant contravention) and to continue to occupy the property where their right to rent has expired (post-grant contravention).

The landlord will have a defence if they take reasonable steps to terminate the tenancy within a reasonable time from discovering that the tenant didn't have the right to rent. They will also have a defence if they complied with all the checking requirements at the start of the tenancy and then notify the Secretary of State as soon as the tenant's right to rent expires during the tenancy.

The landlord also has a defence if the breach was the fault of the agent responsible for ensuring that the occupiers had a right to rent. The agent would then be guilty of an offence. The offence is punishable by a fine and/or imprisonment of up to 5 years if convicted on indictment, or 12 months on summary conviction.

More information

See Right to rent document checks: a user guide for more information on which documents are valid when carrying out checks. The Home Office has also published a Right to rent immigration checks: landlords' code of practice on the topic.

References

Before you grant any type of tenancy, you (or your agent) are advised to take at least 2 references for prospective tenants. The references can be from a previous landlord or secured lender, an accountant, an employer, or a bank or a building society.

As well as a general reference, at least one reference should confirm the prospective tenant's financial status and ability to pay the rent. You have the right to ask for bank or building society statements. These will give you an idea of the state of the tenant's bank accounts, and will also be proof of address. You should also ask the tenant for permission to obtain a credit report and for the details that you will need to give to the credit reference agency.

You should check the references carefully (and not necessarily take them at face value – they could be forged or exaggerated). If you have any doubts, you could consider getting in touch with the referees.

You're advised to make detailed checks before giving anyone possession of your property (to reduce the risk of a prospective tenant becoming a problem tenant); if a problem arises during the tenancy you can't harass the tenant or take the law into your own hands, whatever the circumstances.

If a tenant can't afford the deposit

You can check whether any help with the deposit is available to the tenant. For example, in some circumstances:

  • employers may have a scheme to lend employees the deposit; or
  • local authority housing departments (in England & Wales and Scotland) may have a rent or deposit guarantee scheme, which would guarantee rent or the cost of damage for a specified period.