December 2016 – Right to Rent
People who require immigration leave to enter or remain in the UK and do not have it are disqualified from occupying premises under a residential tenancy agreement unless they have been granted permission to rent by the Home Office.
A landlord commits an offence where they know or have reasonable cause to believe that premises let by them are occupied by an adult who is disqualified.
The landlord has a defence where they are able to prove that they have taken reasonable steps to terminate the residential tenancy agreement within a reasonable period of time.
The Secretary of State for the Home Department (Home Secretary) has now issued guidance, setting out some of the factors the Home Secretary would consider appropriate as reasonable steps to terminate a residential tenancy agreement and a reasonable period within which those steps should be taken.
The reasonable period of time in which a landlord must take reasonable steps to end a tenancy agreement begins from the point where they first knew or had reasonable cause to believe that a tenant or occupant of their property was disqualified.
In deciding whether the landlord took reasonable steps within a reasonable period of time, the courts will take all the circumstances of the case into account but must have regard to this guidance.
There are various routes a landlord can take in order to terminate a tenancy agreement and take possession of a property, depending on the nature of that agreement and the statutory protections available to the tenant. Where a landlord is able to evidence that they are actively pursuing these routes they will be considered to have taken reasonable steps to terminate the agreement.
Landlords must ensure that they follow the correct steps to end the tenancy and recover possession to avoid unlawful eviction.
The easiest way to end a tenancy is through mutual agreement where the tenant(s) agree(s) to end or ‘surrender’ the tenancy. Where this is possible, there will be no need for eviction action.
If a mutual agreement is not possible, and there is a short period of time until either any fixed term of the tenancy comes to an end, or a break clause in the tenancy agreement could be exercised, then it is acceptable for a landlord to end the tenancy at that point. In these circumstances, the landlord should serve notice on the tenants to end the tenancy agreement in accordance with the usual procedure, which in the case of an assured short hold tenancy would be by serving a section 21 notice.
There are a number of other routes to eviction which can be used to evict disqualified people. The 2016 Act provides for additional routes specifically aimed at disqualified people. These are only available where a landlord has received a notice from the Home Office to inform them that they are renting to a disqualified person.
The courts will take into consideration the steps that a landlord must take in order to end a tenancy. In all cases, this will include giving adequate notice to the tenants. The courts will take into consideration any stages where a landlord cannot take any further steps. This includes any notice periods, waiting for court decisions and where a landlord is enforcing possession and reliant upon bailiffs or High Court Enforcement Officers to enforce possession.
The reasonable period of time relates to the point in time at which the landlord came to know that they were letting to a disqualified person or came to have reasonable cause to believe this to be the case. Where the Home Office has issued a notice explaining to a landlord that they are letting to a disqualified person, the landlord will be taken to know that they are letting to a disqualified person upon the notice being served. If the notice is not served in person, but by post or email, it will be deemed to be served two days after the date of the letter.
Where a landlord undertakes further checks on someone as part of the Right to Rent scheme at the end of the eligibility period and finds that they are now a disqualified person or has reasonable cause to believe that this is the case, the landlord must notify the Home Office as soon as reasonably practicable or they risk prosecution. An agent undertaking such checks on behalf of a landlord who knows or has reasonable cause to believe the tenant or occupant is disqualified must notify both the landlord and the Home Office as soon as reasonably practicable or risks committing an offence.
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