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Right to Rent rolls out today in England

The ‘Right to Rent’ regulations stemming from the Immigration Act 2014 become effective today in England: Landlords are now required to carry out ‘Right to Rent’ checks for all new tenancies.

The government has published a collection of guidance for landlords. See here

The aim of landlords will be to establish a statutory excuse in order to defend themselves should they ever be found to have contravened the Act.
Essentially, this is done by carrying out the checks on all prospective adult occupiers, and by keeping copies of the document and the date the checks were done and copies taken.

If a prospective occupier only has a limited right to rent the statutory excuse will only be established if the checks were carried during the 28-day period ending on the day before the tenancy agreement is entered into.

Someone has a limited right to rent if she does not belong to one of the following categories:

  • British citizens,
  • EEA nationals (EU, Iceland, Lichtenstein, Norway. See here ),
  • Swiss nationals,
  • holders of indefinite leave to remain in the UK (permanent residency).

A number of commentators, and indeed the government guidance, advise that the checks may be carried out 28 day before the start of the tenancy.
However, this does not seem to be what is stated in the Act : It states that the period relates the date a “tenancy agreement is entered into” and defines a “tenancy agreement” as including a tenancy and indeed an agreement for a tenancy.

Therefore, it would be prudent:

  • not to enter into an agreement at all before the checks have been carried out, and,
  • not to enter into an agreement earlier than 28 days before the expected start of the tenancy.

Furthermore, the Act states that making an agreement conditional to the occupier’s right to rent has no effect in determining a contravention and penalty.

Checks must then be carried out again on all limited right to rent occupiers after one year or whenever their right to remain documents expire, whichever comes later.