Agents who will do Right to Rent checks on behalf of landlords should be aware that a crucially important requirement is not obvious.
It is so unclear that solicitors we asked about it have given conflicting advice.
It is also unclear as to why the latest Home Office guidance does not spell out exactly when the checks must be made when this is such a critical matter in terms of agents and landlords complying with the law.
The latest Home Office guidance
does not say when Right to Rent checks need to be carried out, leading some law firms to say that there is no timescale and that the only requirement is to carry out the checks before the tenancy starts.
However the guidance does reference via one of several internet links a Code of Practice issued last December
which says some way down: “Right rent checks on prospective tenants may only be undertaken and recorded up to 28 days before the tenancy agreement comes into effect.” (See 5.1).
Since student lets in particular are almost always arranged months in advance, this seemed to EYE to be a critical point.
We asked the Home Office for clarification.
A spokesperson said yesterday: “The earlier Code of Practice is still current.
“Our more recent document is really just a supplement.
“It does not go into the level of detail that the Code does, but both documents are correct.”
The 28-day requirement not only stands but is part of a Code of Practice enshrined in law via a Statutory Instrument.
However, the 28-day requirement is not as straightforward as it looks because the period expires the day before the tenancy agreement starts. So, an agent conducting checks that have been put in the diary at 28 days before the day of the start of the agreement would be breaching the law.
http://www.legislation.gov.uk/uksi/2014/2874/pdfs/uksi_20142874_en.pdf
Section 8 says: “The prescribed period within which the prescribed requirements must be complied with for the purposes of sections 24(4) and 26(4) of the Act is 28 days ending on the day before the day on which the residential tenancy agreement which authorises occupation is entered into.”
According to ARLA, the 28-day rule must be tightly observed.
Rachel Hartley, who is taking the lead role at ARLA for Right to Rent, said: “In a situation like this, we are advising agents to do any reasonable preliminary checks that are possible in advance (sometimes this may be via a video call, noting details of the call) and then set up the tenancy subject to Right to Rent check requirements prior to occupation (within the 28-day period).
“This will help to ensure that the letting can go through trouble free and the agent can still establish the statutory excuse against civil penalty.”
Solicitor David Smith of Anthony Gold said the requirement is NOT to make checks within 28 days of the tenancy starting.
He said: “The legal requirement is to do the check within 28 days ending on the date that the agreement is entered into, not the date the tenancy commences. So an agreement entered into now for a future occupation date will not be a problem.”
See also our next story on other requirements that you may not be aware of in the forthcoming Right to Rent regime that kicks in across England on February 1.
Comments (9)
Thanking about the student market,
So the tenant fails the right to rent check, the landlord is left with an empty property! We need some sort of contract that makes the tenant(s) pay for the complete year even if one of them fail the right to rent checks.
There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.
Donald Rumsfeld
I’m still waiting for the day when we have a legislation change in our industry that DOESN’T cause utter chaos.
I’ve a feeling I could be in for a long wait……
So, once again we’re left trying to work out exactly what they mean.
Section 8 of the statutory instrument, as quoted, does not say that the checks must be performed within 28 days of the tenancy starting, but within 28 days of “the tenancy agreement being entered into”, which is when the contract is created, not when the tenancy starts.
As I understand, the code of practice is only guidance so for any conflicting statement the actual statute or statutory instrument prevails.
It’s going to be fun next year… 🙁
The Code of Practice is enshrined in law via the Statutory Instrument referred to in the story, so it is not just guidance. I had specifically queried this too!
The code of practice exists by law because the Immigration Act states that such code must be created.
However, the Act is clear that the code of practice contains guidance (section 32 of the Immigration Act).
Now, since the Act states that the Code must specify factors used in determining penalties, I suppose that it could be used as defence in proceedings.
“The prescribed period within which the prescribed requirements must be complied with for the purposes of sections 24(4) and 26(4) of the Act is 28 days ending on the day before the day on which the residential tenancy agreement which authorises occupation is entered into.”
Note “authorises occupation”. Could this be the agreement date rather than the tenancy start date? I think so and, if correct, Student lets should be covered.
This Government really isn’t very good at draft laws is it! Perhaps they are a rogue Government!