Legal issues

When carrying out the tasks described in this section, make sure that you comply with your obligations under data protection law. This is because you will need to collect Tenants' personal information.

Also, if your property is in England, Wales or Scotland, you should not attempt to charge your tenants for carrying out these checks. See Fees ban for more information.

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.

The 'Right to Rent' (properties in England only)

For tenancies in England, the Immigration Act 2014 requires a landlord to check that all the adult occupiers of their property have a right to live and rent property in the UK (even if the landlord uses an agent). This is called the 'right to rent' scheme.

Note: In March 2019, the High Court ruled that the right to rent scheme is unlawful. The Government may either appeal the case or amend the law, but in the meantime you should continue to make the right to rent check.

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

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

You must also:

• Keep copies of the documents you receive from the occupiers showing their right to rent
• 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

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

Consequences of failing to perform a check

As part of the Penalties for illegal renting you could receive a criminal conviction and or a fine if you allow someone without the right to rent to occupy your property.

You may have a defence if you have an agent managing your property and:

• They are responsible for carrying out the right to rent checks; but
• failed to do so; and
• you were unaware that the tenants didn't have the right to rent.

But it must be expressly stated in your agreement with the agency that they are responsible for performing the check.

You may also have a defence if you:

• Take reasonable steps to end the tenancy within a reasonable time after discovering that the tenant didn't have the right to rent; or
• Complied with all the checking requirements at the start of the tenancy and then notified the Secretary of State as soon as the tenant's right to rent expired during the tenancy.

Right to rent issues during the tenancy

If a landlord discovers that the tenant doesn't have the right to rent during the tenancy (e.g. if their right has expired), they must take steps to remove them within a reasonable time after discovering this to prevent being 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.

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.