If you are a residential landlord, there are some aspects introduced last year that you may not be aware of but should be. GSC Solicitors’ Head of Litigation & Dispute Resolution, Michael Shapiro, talks you through these new liabilities and what happens if you fail to fulfill your obligations.
As part of the UK government’s attempt to control illegal immigration in England, statutory provisions were introduced into the world of Landlord and Tenant by the Immigration Acts 2014 & 2016 (the 2014 and 2016 Act respectively). This required landlords to check the immigration status of prospective tenants before letting properties to them, or face having to pay fines, penalties and committing a criminal offence.
It is vital for landlords to understand what the 2014 & 2016 Act’s require them to do, and this is why!
Following introduction of the 2014 Act, as at 1 February 2016 any property owner wishing to rent out its property is required to ensure that not only the tenant, but all adult occupiers of the property, had an immigration status that allowed them to be in England. If a landlord failed to make those checks, and it turned out that the tenant or any adult occupier of the property did not have the appropriate immigration status, and therefore had no right to rent premises in England, that landlord could face a fine of up to £3,000, and following the implementation of the 2016 Act, would commit a criminal offence opening up a liability for a prison term of up to 5 years and/or a fine.
If a Prospective tenant had a time limited right to rent, e.g. their immigration status has an expiration date, the failure to carry out a further check at the time of the expiration date, would again leave the landlord open to a fine, penalty and criminal conviction.
Where a landlord uses a letting agent to deal with the letting of its property, the landlord can enter into an agreement with the letting agent that the letting agent will take responsibility for carrying out the immigration status checks of tenants, and therefore it will be the letting agent who would be liable for any potential fine, penalty and committal of a criminal offence.
The Home Office has produced a code of practice that gives guidance to landlords of what checks need to be carried out and how those checks can be carried out.
The 2016 Act introduced an ability for landlords to evict those without the appropriate immigration status from premises, without having to go through the costly and time consuming process of issuing possession proceedings in the county courts. If a landlord receives a notice from the Secretary of State confirming that all of the occupiers of a property lack the sufficient immigration status, a landlord can give the occupants 28 days written notice to quit the property. Upon expiry of that notice it becomes enforceable as if it were a High Court order and a landlord can instruct a High Court Enforcement Officer (HCEO) to enforce the notice. A landlord could even avoid having to instruct the HCEO because if the Secretary of State has served a notice confirming all occupiers do not having the appropriate immigration status any tenancy would be considered an “excluded tenancy” and therefore not protected by the Protection from Eviction Act 1977. The landlord could then, in theory, change the locks to the property, assuming that no one is in occupation, and therefore prevent the occupants from regaining access to the property. Steps will however need to be taken in dealing with the occupier’s personal belongings.
However, occupiers who receive a notice to quit can apply for judicial review to challenge the Secretary of State’s notice and until that judicial review application has been dealt with, the landlord can be prevented from enforcing the notice.
A landlords responsibilities do not end there!
The 2016 Act also made an amendment to the Housing Act 1988 by introducing a further ground for possession. If ‘any’ occupier of the rented property does not have the appropriate immigration status, a landlord can serve a Notice seeking possession relying upon the new Ground 7(B) giving a notice period of two weeks. Ground 7(B) is a mandatory ground for possession, and therefore a court must make a possession order when the possession proceedings that the landlord must then issue, come on for hearing at court. A possession order will then need to be enforced by the court bailiff, or if transferred to the High Court for enforcement, by a HCEO.
If a landlord is given notice or becomes aware that the tenant or any adult occupier does not or no longer has the appropriate immigration status, the landlord must take immediate steps to evict the individual by following either of the two eviction processes. Failure to do so will result in the landlords being guilty of a criminal offence, and again liable to a criminal conviction and/or a fine.
The lesson here is simple. Before you let your property to anybody you must check their immigration status and you should renew your checks upon either renewal of the tenancy or if the tenant had a limited right to be in England upon the time limit of that right expiring.
A recent government survey revealed that as at 31 October 2016 75 civil penalties have been issued to landlords of tenants with no right to rent and as at 30 September 2016, 31 people have been removed from the UK as a result of the right to rent regime. However, those 31 people were only a small proportion of the 654 individuals (5%) whom had been identified as not having the right to rent. This begs the question, is it really working? Only time will tell!