Changes in right to rent checks

Prior to letting out a property, a landlord or their agent must check that a tenant or lodger can legally rent a residential property in England. These are known as the 'right to rent' checks. There are exceptions for certain classes of people (for example, Commonwealth citizens) but in general terms, before the start of a new tenancy, all tenants aged 18 and over must be checked even if they are not named on a tenancy agreement, there is no tenancy agreement or the tenancy agreement is not in writing. Effectively, these are anti-avoidance provisions in that the requirements make it clear that anyone must be checked and not just those who will be taking a written tenancy agreement.

The government guidance points out that all tenants must be checked and that it is against the law to only check people whom a landlord thinks might not be a British citizen; they must not discriminate against anybody because of where they are from.

In response to the Covid 19 situation, the government relaxed the requirements for right to rent checks. Temporary changes were introduced in March 2020 to allow landlords to make checks via video call and tenants could submit scanned documents or photocopy of documents for checks via email or a mobile app rather than sending originals.

These 'temporary adjustments' to the right to rent checks come to an end on 17 May 2021. From that date, landlords must either check the applicant's original documents or check the applicant's right to rent online if the tenant has provided their share code. The government has provided guidance on both of these aspects on its website.

An important clarification on the right to rent checks is that landlords do not need to carry out retrospective checks on those who had a Covid 19 check between 30 March 2020 and 16 May 2021 (inclusive). Thus, if online checks were made during this time, it will not be necessary after 17 May 2021 for the landlord to repeat the checks by looking at original documents, for example.

The government's guidance states that a landlord will 'maintain a defence against a civil penalty if the check you have undertaken during this period was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.'

As with many temporary adjustments which have been made during the last 12 months, adjustments are often made quickly and it can be difficult to determine precisely what rules and requirements were in place at any given date. Thus, landlords and their agents should ensure that they keep complete and accurate records of rent checks made during this time. In addition, they would be well advised to keep a copy of the government's guidance applicable during the period 30 March 2020 to 16 May 2021.

To discuss this or any other landlord and tenant matter, contact us.

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