Back in October 2015, we brought you the announcement that the Government would be expecting landlords to join in the battle against illegal immigration. This new regime, where private landlords will be required to do “right to rent” checks on prospective tenants, goes live today.

Under the new rules, landlords are required to check a new tenant’s right to reside in the UK before renting out their property. Be warned – this also applies to anyone sub-letting or taking in lodgers, not just professional landlords and agents.

What do I have to do?

The check itself is akin to the “right to work” check for employers – a physical check of the relevant identity documents, before taking a copy for record-keeping purposes. This will ensure that the landlord has a “statutory excuse” if it is subsequently found that the tenant was in the UK unlawfully.

Pitfalls to avoid

This regime opens private landlords up to a few potential problems.

First, landlords who don’t do the check at all face a fine of up to a £3,000 per adult tenant who is subsequently found to not have the right to reside in the UK.

Secondly, it is easy to do the check once and then forget to do a repeat check for those tenants whose right to reside is time-limited. Again, this can result in a fine.

Thirdly, there is a risk that landlords may deliberately or unwittingly discriminate against prospective tenants on the basis of race, religion or perceived race and/or religion by:

  • refusing to offer accommodation;
  • offering accommodation on different terms; or
  • treating the prospective tenant in a discriminatory manner.

Race in this context includes nationality and ethnic background.

Examples of discrimination include:

  • only checking the documents of individuals who look or sound like non-UK nationals;
  • refusing to let property to anyone who does not have a UK passport;
  • requiring prospective tenants to have resided in the UK for over 5 years;
  • refusing to let property to people wearing particular religious dress;
  • charging a higher rent to non-UK nationals than you would for UK nationals; or

letting a property only to people who carry out a particular occupation, if a given ethnic group or religion is under-represented in that job.

Avoiding Discrimination

The Government has introduced a Code of Practice for Landlords specifically on recognising and avoiding unlawful race discrimination. In practice this is easy to do, by ensuring that the right to rent check is carried out for every prospective tenant, without exception, and by not stipulating any conditions that relate, even indirectly, to nationality, religion or race.

If a landlord does discriminate against a potential or actual tenant, deliberately or inadvertently, they open themselves up to claims in the civil courts, which would be costly to defend and may also result in compensation far exceeding the £3,000 fine that they were attempting to avoid. There is also the risk of considerable reputational damage to the landlord and/or agent.

Top Tips

  • Run the checks on all prospective adult tenants – don’t make assumptions.
  • Take, date and retain copies of the identity documents. Don’t forget to check again when a tenant’s right to remain is due to expire.
  • If renting your property out through an agent, make sure to agree in writing who will be responsible for carrying out the checks and who will therefore be liable for any fines that may arise.