Landlords and letting agents – private residential accommodation

* Are you a landlord or a letting agent who lets private residential accommodation which can be used as a person’s main or sole home?

* Did you know that, from May 2016, you must ensure that a prospective tenant (or lodger) has a ‘right to rent’ and that if you let a property to someone who doesn’t then you could be liable for a fine of up to £3000?

* Are you aware that a new criminal offence has been created whereby landlords and their agents could receive a prison sentence of up to five years if there is a ‘reasonable belief’ that the person you let a property to did not have the right to rent.

* The ‘right to rent’ is a reference to a potential or actual tenant’s immigration status and landlords or their agents are now responsible for checking and keeping a record of a person’s immigration status. Reports must also be sent to the Home Office in circumstances where the landlord or agent has reason to believe that the person does not have a right to rent. Failure to do so could result in a fine, known as a civil penalty. In the worst case scenario, conviction for a criminal offence and a prison sentence might be the outcome.

* It is not possible to get round these risks by advertising or seeking only people of a particular nationality or colour or bringing a tenancy abruptly to an end as that would lead to a breach of housing or anti-discrimination laws and lead to other problems.

* Landlords and their agents cannot expect to be immigration experts but Fountain solicitors has people who specialise in immigration law who can advise and assist in either setting up systems to help you meet the criteria in the new law or in responding to communications from representatives of the UK Border Force, including notices about penalties.

* It is essential to get legal advice in these situations. For non-urgent matters, please complete the enquiry form or email Sue Conlan on sconlan@fountainsolicitors.com Free consultations up to 30 minutes are available. If the case is urgent, please call Sue on 07791 991756.

Civil liability penalty scheme and criminal offences

In December 2014, new laws came into force in five districts within the West Midlands (Birmingham, Dudley, Sandwell. Walsall and Wolverhampton) which required landlords or their agents to ensure that they were not letting private residential accommodation to ‘illegal immigrants’, the term used by the UK Home Office. In May 2016, that scheme was extended to the whole of the UK. Immigration legislation has therefore been used to introduce a ‘right to rent’, quite separate from the suitability of a prospective tenant and their ability to pay the rent. Certain categories of people are therefore deemed to be ‘disqualified’ from renting private residential accommodation. Failure to check a prospective tenant’s or lodger’s ‘immigration status’ and offer a tenancy or lodgings to a person without a lawful right of residence in the UK can now result in a fine of up to £3000 (for a ‘second offence’) and a criminal offence leading to a prison sentence of up to five years. The scheme applies to accommodation which is intended to be the tenant’s main or sole home.

The UK Border Force has published a Code of Practice on illegal immigrants and private rented accommodation which landlords and their agents are expected to know and comply with. The Code refers to the ability of landlords and agents to show that they had a ‘statutory excuse’ for letting the property to a person who is subsequently shown not to have the ‘right to rent’.

Landlords can establish a statutory excuse to the civil penalty under the Immigration Act 2016 and the attendant code if they can show that they conducted ‘document checks’ before letting the property. They must establish that the person seeking to rent has the right to do so, a reference to their ‘qualifying immigration status’ which can be difficult to ascertain or be certain about, particularly for people not familiar with the UK system of immigration control. Landlords or letting agents tempted to opt to let their properties only to those who can show that they are British citizens by producing a valid British passport to confirm that, risk falling foul of other laws which make it unlawful to discriminate against people because, for example, of their race or religion. If the landlord can be shown to have had ‘reasonable cause to believe’ that the tenant was disqualified from renting due to their immigration status, then they can face prosecution and conviction.

Establishing that a tenant, and any other adults who will occupy the property (whether or not they are on a tenancy agreement or licence), has the ‘right to rent’ does not mean that no further checks need to be undertaken as tenants can lose the right to rent if their immigration status changes during the course of their tenancy. This might arise, for example, when a person with ‘limited to remain’ does not have their residence in the UK extended and is required to leave the UK. Although immigration legislation gives landlords the right to terminate tenancies in circumstances where there is no ‘right to rent’, the exercise of that power must be taken in the context of the requirement not to breach housing law, equality legislation or laws about racial discrimination.

The UK Border Force refers to the law regarding discrimination but emphasises the need to comply with the ‘right to rent’ checks, thereby leading landlords and letting agents liable to claims for racial discrimination.

A landlord or their agent who is issued with a notice of liability to a penalty should get expert legal advice before replying. This will provide the options and prospects for a landlord who wishes to consider filing a notice of objection. The UK Border Force encourages speedy resolution of the penalty by way of offering a reduction of up to 30% if the penalty is paid within 21 days. Landlords should carefully consider the implications of paying early as it means accepting liability for breaking the law.

In addition, anyone who believes that they have been refused a tenancy or where a tenancy has been ended on the grounds that they do not have the ‘right to rent’ should get legal advice, both about a claim that they might be able to bring against the landlord or their agent or in relation to their immigration status.

In any of these circumstances, experts at Fountain solicitors are able to advise and assist. Agreements can be reached about a fixed fee for agreed work so that landlords and agents are certain about the costs involved at each stage.

We are also able to advise people who have been refused a tenancy or are threatened with or have been required to leave their private residential accommodation as a result of a query over their immigration status. Our team of immigration specialists is also available to assist with immigration cases.