Right to Rent Roundtable UKAA 15 November 2017 The content of these slides is written and provided for general information purposes only as at 15 November 2017 and is not intended and should not be used as a substitute for taking legal advice. Specific legal advice should be taken before acting on any of the topics covered.
osborneclarke.com Right to Rent Scheme • Immigration Act 2014 (England from 1 February 2016) • Amended and "enhanced" by Immigration Act 2016 • Clamping down on people residing unlawfully • Preventing access to PRS/BTR 1
osborneclarke.com Who is affected by the scheme? • Private landlords of residential property in England • Landlord's agents (subject to written retainer) • Occupiers (not just named tenants) over 18 at the time of grant • Those who turn 18 during the course of the tenancy 2
osborneclarke.com Types of occupational agreements 'Tenancy' includes any lease, licence, sub-lease/sub- tenancy (and an agreement for any of those) where: ‒ the property is the tenant's only or main residence; ‒ tenancy provides for payment of rent (not just market rent); and ‒ the tenancy is not excluded. NB – can apply to leases of mixed use premises 3
osborneclarke.com Exemptions • Holiday lettings (but more than 3 months?) • House guests where no rent payable/not using as only or main home • Social housing or Local Authority landlord • Tied accommodation (in the course of employment) • Student accommodation • Long leases 4
osborneclarke.com Immigration status Unlimited right to rent • British citizens, European Economic Area (EEA) and Swiss nationals • People who have the right of abode in the UK, or who have been granted indefinite leave to remain or have no time limit on their stay in the UK Time-limited right to rent • Individuals have valid leave to enter or remain in the UK for a limited period of time. • They are entitled to enter or remain in the UK by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972. No right to rent 5
osborneclarke.com Checks • Obtaining originals of "acceptable documents" for the adult occupiers • Check the original documents in the presence of the individuals • Make and retain copies • Record the date of the checks 6
osborneclarke.com Penalties Breach and no "statutory defence/excuse" Criminal sanctions: • Imprisonment • Fine • Both Civil penalty: • Penalty notice for a sum not exceeding £3,000 7
osborneclarke.com Further information Home Office • Code of practice on illegal immigrants and private rented accommodation • A short guide for landlords on right to rent • Right to rent document checks: a user guide • An online right to rent tool to confirm if a property will be affected 8
osborneclarke.com Practical challenges and considerations • Large-scale stabilised developments – volume • Options – due diligence and warranties • Lack of management/operational systems, transitional periods • Tenancy schedule evidencing checks undertaken - moving target • Rectification • Forged documents 9
osborneclarke.com In the press… BBC News – 16 October 2017 "Legislation aimed at preventing illegal immigrants from renting properties is fuelling a black market in forged IDs , a BBC investigation has found. Under Right to Rent rules introduced last year landlords must check the immigration status of new tenants. But criminal gangs are helping undocumented immigrants flout the law by them selling fake documents. A Home Affairs spokesperson said landlords were not expected to be experts in spotting forged documents . An undercover reporter for BBC Inside Out London was able to purchase counterfeit passports, as well as National Insurance cards and residence permits from illegal dealers across London. Using a secret camera the reporter recorded the deals, with fraudsters charging up to £500 for a fake passport. Some documents arrived within 48 hours. The forged IDs were then presented to letting agents, who were secretly filmed accepting them without question as proof of UK residency status . Akhbar (not his real name) was previously associated with gangs involved in producing forged paperwork. He told Inside Out: " In an average week they were selling between six to 10 fake residence permits or passports. In the last few months or so I would say they got even busier ." Home Office figures show 170 fines have been issued to landlords under Right to Rent rules since October 2016." 10
osborneclarke.com JCWI evaluation of the West Midlands pilot of ‘Right to Rent’ from 1 st December 2014 to 1 st May 2015 • 42% of landlords are unlikely to rent to those without British passports • Over 25% would be less likely to rent to someone with a foreign name or foreign accent • Checks are not being undertaken uniformly but are instead directed at certain individuals who appear ‘foreign’ • Landlords forced to discriminate against individuals with the legal right to rent but with unclear or complicated immigration status, in addition to those who cannot provide documentation immediately Landlords forced into being Border Guards and 77% do not support the Scheme 11
osborneclarke.com Anecdotal evidence from the Bar – Lina Mattsson • Instructions pre-1 February 2016 from landlords seeking guidance on their obligations • Sporadic instructions pursuant to ground 7B of Schedule 2 of the Housing Act 1988 - but no actual hearings (assumed tenants vacated due to threat of being detained) 12
osborneclarke.com Anecdotal evidence from Shelter from the Storm - – Lina Mattsson • New rules make it virtually impossible to rent a decent home without documents • “Rogue/slum” landlords still willing to let properties • Tenants feel they have no rights and feel unable to seek help from the council when unlawfully evicted 13
osborneclarke.com Thank you: Speakers' profiles Anastasia Gorokhova Rebecca Francis Lina Mattsson Associate Director Senior Associate Barrister Osborne Clarke LLP Osborne Clarke LLP Hardwicke Chambers Real Estate Real Estate Disputes Real Estate T +44 207 105 7466 T +44 207 105 7228 T +44 207 242 2523 Anastasia.Gorokhova@osborneclarke.com Rebecca.francis@osborneclarke.com Lina.Mattsson@hardwicke.co.uk 14
Thank you. Osborne Clarke is the business name for an international legal practice and its associated businesses. Full details here: osborneclarke.com/definitions
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