What Are Right to Rent Checks And How do They Work?
As the latest COVID-19 variation ravages the UK, and particularly London, landlord and tenant solicitors know people still need to move house. That is especially the case in a vibrant city like London with a young renting population who are often on the move because of new relationships, financial changes or the start of a new job. Whatever the reason behind the move, and whatever the prospective tenant’s nationality, a right to rent check must be undertaken by a landlord or their letting agent. Failure to do so could result in a landlord receiving a civil penalty. In these days of landlords experiencing increased overheads the last thing a landlord needs is to get a fine.
Nollienne Alparaque, head of the landlord and tenant solicitors, takes a look at the current COVID-19 related right to rent rules and how the government COVID-19 concessions work and the planned April 2022 changes.
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What are right to rent checks?
Right to rent checks are needed if you are letting a property. They are part of immigration controls to make it impossible (or at least difficult) for those without a right to live in the UK to find a place to rent. Similar provisions apply to employers and the carrying out of a right to work check.
The main points about the right to rent checks are:
- Right to rent checks must be carried out against all prospective tenants (save for children). A landlord cannot assume that because a person has lived in the area for years or has employment that they have a right to rent. An assumption, however justified, will not protect a landlord from a civil penalty for either not carrying out a right to rent check or conducting one in a manner that is not prescribed by the rules.
- Some right to rent checks will need to be repeated. For example, if the tenant is in the UK on a time limited visa, such as a skilled worker visa or spouse visa.
- A record must be kept of the right to rent check as otherwise a landlord has no evidence that they carried out the check in accordance with the rules.
- Failure to carry out a check could result in a civil penalty fine.
COVID-19 and right to rent checks
The government has issued guidance on right to rent checks and how they should be conducted during the COVID-19 pandemic. This guidance remains in force until the 5 April 2022. The government is introducing new long term right to rent rules commencing on the 6 April 2022.
The current COVID-19 right to rent changes that remain in place until the 5 April 2022 include:
- Right to rent checks can be carried out by video call.
- Prospective tenants can send a landlord (or their letting agent) a scanned document or a photograph of their right to rent paperwork using email or a mobile app. The tenant does not need to handover the original paperwork or post them to the landlord to check.
- Landlords can use the online Home Office landlord checking service if a tenant or prospective cannot provide any of the required right to rent documents.
Although the Home Office introduced COVID-19 right to rent check concessions it is still an offence to knowingly rent to a person who does not have the right to rent in England. Therefore, landlord and tenant solicitors emphasise the importance of understanding the rules in force until the 6 April 2022.
To check a prospective tenant’s right to rent a landlord currently needs to:
- Ask the tenant to provide a scanned copy or a photograph of their original paperwork that proves they have a right to rent by sending the documents by email or using a mobile app.
- Video call with the tenant and ask the prospective tenant to hold up the original documents to the camera so a check can be made that the paperwork relates to the prospective tenant.
- Record the date the right to rent check was carried out and mark the right to rent check as ‘adjusted check undertaken on specified date because of COVID-19’.
- Use the Home Office online right to rent checking service if the prospective tenant gives permission to do so and if the tenant has a current biometric residence permit or card or has settled status under the EU Settlement Scheme or a visa under the UK points-based immigration system. A video call is still needed to prove that the prospective tenant is the same person as the person that the landlord is viewing details of using the online service.
Provided a landlord carries out a right to rent check in accordance with the current COVID-19 right to rent concessions the landlord will have a defence against a civil penalty.
Right to rent check changes on the 6 April 2022
April will soon be here and, on the 6 April, the Home Office right to rent changes come into force. The changes will affect prospective tenants who have a:
- Biometric residence card or
- Biometric residence permit or
- Frontier worker permit.
From the 6 April 2022, biometric residence card, biometric residence permit, and frontier worker permit holders will need to evidence their right to rent using the Home Office online service. Landlords will no longer be able to accept the handing over of physical documents by the prospective tenant for inspection and copying by the landlord. That is the case even where the tenant’s paperwork is in order and shows that they have a right to rent.
The positive news is that although presentation of a physical documents will no longer be acceptable, landlords will not need to undertake retrospective right to rent checks using the online system for tenants who entered into a tenancy agreement on or before the 5 April 2022 as the regulations give landlords a statutory excuse against any civil penalty. This is subject to the proviso that the initial right to rent checks were carried out in accordance with the pre-6 April 2022 right to rent guidance.
UK Online and London Based Landlord and Tenant Solicitors
For advice on any aspect of landlord and tenant law or a consultation call the expert London landlord and tenant lawyers at OTS Solicitors on 0203 959 9123 or contact us online.