Landlords’ new obligations under the ‘Right to Rent’ legislation

Under new rules brought in by the Immigration Act 2014 (‘the Act’), all private landlords in England, including those who sub-let or take in lodgers, will have to check new tenants have the right to be in the UK before renting out their property. These new rules commence from 1 February 2016.

Landlords who fail to check a potential tenant’s ‘Right to Rent’ will face penalties of up to £3,000 per tenant.

Whilst the wording of the Act covers adults who are to occupy a premises under a residential tenancy agreement, there is definitely scope for interpretation that this not only covers direct tenants, but also covers adults who are authorised occupiers under the tenancy, or even adults known by the landlord to be using the property as their main or principal home. There is an indication that the Home Office expects more thorough checking over and above the tenants directly named in the tenancy agreement, as the advice provided by the Home Office repeatedly recommends that all adult occupiers known to be resident at the property should be subject to the right to rent checks.

A cautious landlord may consider it wise to conduct a right to rent check for all adults aged 18 or over who will be using the property as their main or principal home. Such a cautious approach may even be more prudent if the Immigration Bill 2015 is approved in its current form and proceeds with including criminal sanctions for landlords alongside civil penalties.

Extending from civil penalties to criminal prosecution

The current form of the Immigration Bill 2015 (‘the Bill’) provides for two potential criminal offences which may be committed by the landlord and/or their agent. The offences relate to the premises of the landlord being found to be occupied by an adult whose immigration status disallows them the right to reside in the UK. For an offence to have been committed, the Bill provides both an objective and subjective test as to whether the landlord knew or had reasonable cause to believe that an adult without the correct UK residential status was residing at the property.

Landlords or agents who are found guilty of these offences could be fined or imprisoned for up to five years.

Other legal impacts for landlords

There is the danger that some landlords may see the responsibility under the Act and proposed Bill as an unpalatable burden which they want to minimise, especially with the potential of prosecution on the horizon. If landlords actively decline accommodation for those they believe not to be British citizens, they could fall foul of anti-discrimination law. The Government is mindful of such tactics occurring, and has provided guidance specifically centered on avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector.

The Act also requires landlords to record and store personal data on the nationality and immigration status on adult residents at their properties. Such data will be subject to the rules provided for under the Data Protection Act 1998 which, to name a few, includes the need for secure storage and compliance with the length of time the data needs to be held on file.

Useful Documents

Further detailed information on the requirements under the Act, including how to make a check, what information to store, and how to report a tenant, can be found in a new Code of Practice. The Government has published the following documents by way of advice and information;

Code of Practice on illegal immigrants and private rented accommodation;
Code of practice for landlords: avoiding unlawful discrimination when conducting ‘right to rent’ checks in the private rented residential sector; and
Right to rent information sheet.

These publications are available on the Gov.UK portal, and can be found at:https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice

October 29, 2015

Planning conditions and the process of deemed discharge

Under section 74A of the Town and Country Planning Act 1990 as amended and Part 5 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (“DMPO”), conditions requiring the consent, agreement or approval of a local planning authority (“LPA”) can benefit from ‘deemed discharge’ in some circumstances, meaning that such consent, agreement or approval is deemed to have been given by the LPA.

Deemed discharge can be sought where an application for such consent has been made and the 8 week determination period has elapsed with no decision – but only if the applicant gives the LPA advance written notice (“a Deemed Discharge Notice”).

A Deemed Discharge Notice can only be given after six weeks from the day after the application for discharge has been made, or after the expiry of a shorter period if agreed in writing between the applicant and the LPA. The Deemed Discharge Notice must state which application and condition it refers to and confirm that no appeal has been made in respect of the non-determination (if the determination deadline has passed).

The Deemed Discharge Notice must also specify the date on which deemed discharge is to take effect. This is the date specified in the Notice itself but it must be the later of the expiry of the 8 week determination period or 14 days after the day following that on which the notice is received by the LPA. Deemed discharge will be given on that date, unless the LPA makes a determination in the meantime.

However, there are exemptions to this regime as set out in Schedule 6 of the DMPO. Certain conditions can not benefit from a deemed discharge if the applicant and the LPA have agreed in writing that deemed discharge will not apply or to the following types of conditions:

Those attached to a development that is subject to an Environmental Impact Assessment
Those attached to a development that is likely to have a significant effect on a qualifying European site
Those intended to manage the risk of flood
Those attached to development within Sites of Scientific Interest which are likely to have a significant effect on such a site
Those relating to the assessment or remediation of contaminated land
Those relating to investigation of archaeological potential of the land
Those relating to highway access or requiring a Section 278 Agreement be entered into
Those relating to the approval of reserved matters for outline planning permissions
Those requiring a Section 106 Agreement be entered into
Those attached to planning permission granted under a Development Order (Special Development Order, Local Development Order, Neighbourhood Development Order) or planning permission granted in relation to Simplified Planning Zone or Enterprise Zone
Those attached to planning permission granted for Crown development or government authorisation

October 22, 2015

A practical guide to party walls

This note is a practical guide to the law relating to party walls. It also explains the consequences of failing to follow the correct procedures.

Break clauses in commercial leases – a practical guide for tenants

This note highlights some practical issues that a tenant should consider when looking to exercise a break clause in a commercial lease.

Telecommunications wayleave agreement

A landlord’s response

As technological advancement in telecommunications proceeds apace, so does the tenant’s requirement for the use of it. The installation of new or enhanced data transmission cabling to premises will invariably require a wayleave agreement to be signed. This agreement gives rights to the telecoms supplier to install and maintain its apparatus. Unless the business user has a freehold or a long leasehold interest in its premises, the telecoms supplier will invariably want the wayleave agreement to be provided by a person who has such an interest.