Right to Rent

From the 1^st February 2016, it became a requirement for the landlords to determine whether their tenants have the right to rent in the UK. Therefore, if you are a landlord who rents out a house, flat, rooms in a house or even if you rent out rooms in your own home you will need to carry out these checks.

Section 22 of the Immigration Act 2014 states that landlords shouldn’t allow an adult to occupy accommodation as their own or main home on a residential tenancy agreement unless the adult is a British citizen, EEA or Swiss National or the person has a “right to rent”. Someone has a right to rent if:

• They have the right to be in the UK under EEA law (for example because they are family members of an EEA/Swiss national); or

• They have valid immigration permission to be in the UK e.g. Tier 4 student visa; or

• They do not have valid immigration permission to be in the UK but have been granted 'permission to rent' by the UK government (this only applies in exceptional circumstances).

Therefore from 01 February 2016 landlords will be required to check all their tenants’ (who are 18 and over) immigration status before granting a tenancy agreement. You can check the status of anyone who doesn’t have a limit on the time they can stay in the UK (i.e. British citizen, EEA or Swiss National) at any point in the run up to the start of the tenancy however you must check the status of anyone who has a time limited “right to rent” no more than 28 days before the tenancy is due to start.

To check someone’s immigration status you need to meet with them, view certain original documents in their presence (a list of acceptable documents can be found in the “Right to rent check: a user guide” document here) and satisfy yourself they are correct. You will need to check the following:

• Photographs and dates of birth are consistent across documents and with the person’s appearance to prevent impersonation.

• Expiry dates for leave have not passed

• Documents appear genuine and belong to the holder – no signs of being tampered with

• The reasons for any different names on documents (e.g. marriage certificate, divorce decree). Any supporting documents should be seen, copied and retained

Copies (which must be in a format which can’t be altered later on) of the original documents (and any supporting documents) must be retained with a record of the date on which the checks were made. When copying passports please ensure you copy any page with:

• Document expiry date

• Date of birth

• Leave expiry date

• Biometric details and photograph

• Information on indicating the holder has entitlement to enter or remain in the UK

Copies must be kept for the duration of the tenancy and for at least 1 year after. Please ensure you follow data protection regulations (Data Protection Act 1988) for the safe storage of these copies.

If a prospective tenant is unable to provide any of the required documentation – for instance it maybe with the Home Office for checking, landlords can use the Home Office’s Landlord Checking Service, whose response time is 2 working days, and they will respond with a clear Yes or No as to whether the person has a right to rent. In cases such as this, the prospective tenants should be able to provide a Home Office Reference number which the landlord must quote when using the service. This can be accessed on the phone (tel: 0300 069 9799) or online: https://eforms.homeoffice.gov.uk/outreach/lcs-application.ofml

Some people will have a time limited right to rent and to avoid being in breach of the regulations you will be required to carry out follow-up checks. A follow up check should be carried out shortly before whichever is longer of the expiry date of the person’s right to remain in the UK or shortly before 12 months from the start date of the tenancy. If follow up checks show that the person no longer has a right to rent then you must report them to the Home Office.

Please be aware that all adult occupiers of the property will need to have their documents checked even if they are not on the tenancy agreement.

To ensure you are not discriminating please ensure you carry out checks on the specified documents listed and do not take into account any other issues such as race, religion etc. Further documentation on how to avoid discrimination can be found here.
 

Right to Rent Nomination Letters

The University of Sheffield is now able to issue Right to Rent Nomination letters to students to nominate them to private sector accommodation, even if they have found the accommodation themselves.

This will mean that landlords will not need to carry out a right to rent check on a student who has provided you with a valid Right to Rent Nomination letter from a University as they will be exempt from the checks.

Students can obtain this letter by logging into their University account and under myrecord, click on “landlord’s address” and “prospective address” on the left hand side of the screen and complete the details. They can then visit SSiD in the Student Union to pick up their letter.

If you intend to ask any of your students for a copy of this letter, please ensure they are provided with the correct postal address of the property in question and your full name and address as this information will need to be present on the nomination letter.

When they visit SSiD please ensure they ask for the “Right to Rent Nomination Letter”.

Right to Rent Online Checking Service

The Online Right to Rent checking service went live on 25th November 2020, allowing landlords and agents to check their tenant's Right to Rent online, rather than through checking through their physical documents.

You can access further information and the Online Checking Service here:

https://www.gov.uk/view-right-to-rent

To use this service, you will need the tenant's:

- date of birth
- ‘share code’
The share code will be emailed to you or given to you by the tenant.

From 6 April 2022, there were changes to some of the Right to Rent checks. Landlords can no longer accept biometric residence cards (BRC) or biometric residence permits (BRP), or Frontier Worker’s Permit biometric cards for a manual check and these have removed from the list of acceptable documents in the Right to Rent check guides. You will, instead, need to ask these tenants for a share code to enable you to conduct the check online using the link above.

Also from 6 April 2022, landlords can use certified Identification Document Validation Technology (IDVT) service providers to carry out digital checks on behalf of British and Irish Citizens who hold a valid passport (or Irish passport card). However, this is not mandated and you can continue checking British and Irish documents manually if you would prefer or if this is more cost effective for you.

Section 21 Notices

The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (as amended) came into force on 1^st October 2015. It requires landlords seeking possession of a property, using a Section 21 Notice as per the requirement of the Housing Act 1988 (as amended), which is let under an Assured Shorthold Tenancy to use a prescribed notice. This notice is referred to as Form 6A ‘Notice seeking possession of a property let on an Assured Shorthold Tenancy’, and can be found on the Government website here.

The legislation also states that in addition to the current requirement of providing the EPC and Gas Safe Certificate, landlords must provide a copy of How to rent: the checklist for renting in England in advance of the tenancy agreement.

These regulations are in addition to those already in force in relation to the protection of a deposit in a government backed scheme within the set time limit, and issuing prescribed information to the tenants.

Gas Safety

Landlords have a duty to ensure that all gas appliances and pipe work are maintained in a safe condition; each gas appliance must be checked for safety at intervals of no more than 12 months by a Gas Safe Registered installer. The landlord has a duty to keep a record of these safety checks and must also supply a copy of the record to each prospective tenant when moving in and current tenant(s) within 28 days of the check taking place. For further information, please see the Gas Safe site.

From 6^th April 2018 onwards, The Gas Safety (Installation and Use) (Amendment) Regulations 2018 introduces an MOT style window for gas safety test completion. This will allow landlords to have a two-month period prior to the deadline within which to complete a gas safety test but still retain the original deadline date. Landlords will need to maintain records of compliance showing the date of previous gas safety checks, the date of the last check and the preserved deadline date, along with some previous certificates. Some further information and guidance can be found on the HSE website.

Under the Gas Safety (Installation and Use) Regulations 1998, it is a criminal offence to not have a gas safe record, or to not provide a copy of it to each tenant. The maximum penalty for non-compliance is 6 months’ imprisonment and/or a £5,000 fine.

This legislation is applicable for landlords letting a whole property, a room in a shared house or a room in their own home.

Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

These regulations came into force on 1st June 2020 and require landlords to have the electrical installations in their properties inspected and tested by a person who is qualified and competent, at an interval of at least every 5 years. Landlords have to provide a copy of the electrical safety report to their tenants, and to their local authority if requested.

The Regulations apply in all cases where a private tenant has a right to occupy a property as their only or main residence and pays rent. This includes assured shorthold tenancies and licences to occupy.

Landlords of privately rented accommodation must:

• Ensure national standards for electrical safety are met. These are set out in the 18th edition of the ‘Wiring Regulations’, which are published as British Standard 7671.
• Ensure the electrical installations in their rented properties are inspected and tested by a qualified and competent person at an interval of at least every 5 years.
• Obtain a report from the person conducting the inspection and test which gives the results and sets a date for the next inspection and test.
• Supply a copy of this report to the existing tenant within 28 days of the inspection and test.
• Supply a copy of this report to a new tenant before they occupy the premises.
• Supply a copy of this report to any prospective tenant within 28 days of receiving a request for the report.
• Supply the local authority with a copy of this report within 7 days of receiving a request for a copy.
• Retain a copy of the report to give to the inspector and tester who will undertake the next inspection and test.
• Where the report shows that remedial or further investigative work is necessary, complete this work within 28 days or any shorter period if specified as necessary in the report.
• Supply written confirmation of the completion of the remedial works from the electrician to the tenant and the local authority within 28 days of completion of the works.

You can find out more about the legislation here.

Energy Performance Certificate (EPC)

Any property rented as a whole (i.e. not to individuals on individual contracts, or a room in a resident owner’s home) must have a valid EPC. There are a small number of exceptions, such as a listed property (unless Green Deal work has been carried out) or a property which is due to be demolished, but these are rare.

A valid EPC must be made available to prospective tenants when providing written information about the property or when arranging a viewing, either electronically (such as on Smart Move Sheffield’s website or via email) or as a hard copy provided by the landlord/agent. As this must be provided prior to information being provided to prospective tenants or viewings being arranged, Smart Move Sheffield will not advertise a property to be rented as a whole without an EPC.

From 1^st April 2018, it is a requirement that any property rented on a new tenancy either as a whole, or on individual tenancies where the property already has an EPC from previous sale or rental, must have a minimum energy performance rating of E on its EPC. Further information on the minimum energy efficiency standards can be found here.

Where it is not possible for a property to reach a rating of E or higher, or the landlord is unable to obtain funding to cover the cost of making improvements it may be possible to register the property as exempt from the regulations. Please be aware that any exemptions do not pass to the new owner upon sale or transfer of the property.

You may find the guidance produced by the Department for Communities and Local Government here useful.

Deposits

Any security deposit taken to cover damage or loss at the property for a tenant on an Assured Shorthold Tenancy agreement must be protected in a government backed scheme. There are currently six different schemes, three of which are free to use (custodial schemes) and three which cost to use (insured schemes), from 3 different providers whose details are as follows:

• Deposit Protection Service

• MyDeposits

• Tenancy Deposit Scheme

Each provider now runs both a custodial and insured scheme for landlords or agents to choose. Each provider has information about how their schemes work on their websites, but as a basic description, a custodial scheme is free and the landlord or agent is required to send the money for the deposit to the scheme provider. Whereas, for the insured scheme the landlord or agent holds the deposit in their specified account, often a client account. If using the insured schemes, it is good practice to ensure that the tenant is aware of who will retain any interest accrued whilst the deposit is held by the landlord/agent and that they sign to confirm their agreement with this, such as a clause in a tenancy agreement.

After taking the deposit, the landlord must secure it with one of the schemes and provide the tenant with the prescribed information within 30 days of taking the payment. The Deposit Protection Service and the Tenancy Deposit Service provide a template for you to use to fulfil this requirement, whilst MyDeposits advise which of the documents they provide for you should be given to the tenants as the prescribed information.

The tenants will need some time to check the information and sign to confirm it is correct and that they have received it. You may wish to provide two copies to sign, one for them to keep and one for yourself.

When the tenancy has ended, and the tenant is leaving the property you will need to check the condition of the property and any furniture/furnishings provided. It is useful if you have an inventory or a schedule of condition from the start of the tenancy to compare the condition to.

If there are issues with the condition of the property due to damage, or cleanliness you will be able to retain funds to cover the cost of the damage caused (subject to fair wear and tear) or to cover the cleaning as long as your tenancy agreement allows for this. Please ensure you are familiar with the process of returning or retaining funds as per your chosen tenancy deposit protection provider.

You must not claim funds for betterment (where you put the property, furniture or furnishings into a better condition than at the start of the tenancy), or for costs not specified in your tenancy agreement, and you should provide the tenants with a detailed breakdown of the costs associated with the damage or disrepair as soon as possible following the end of the tenancy.

If the tenant does not agree with the deductions, they are entitled to provide information as to why. You are encouraged to discuss this with the tenant and come to an arrangement where possible. If you find that you cannot agree, either yourself or the tenant is entitled to raise a dispute with the free dispute service provided by the tenancy protection provider. You and the tenant will be required to provide information as to the details of the dispute, such as an inventory, tenancy agreement, photographs etc to allow the adjudicator to make a fair and accurate decision. The decision from the dispute service is final.

How to Rent: The Checklist for Renting in England

Legislation which came into force on 1^st October 2015 makes it clear that the landlord or agent must provide the most up to date copy available of the “How to rent: the checklist for renting in England” booklet to the tenants prior to the start of the tenancy. It is advised that the tenant is provided this prior to signing the tenancy agreement with enough time to read the document.

The tenant can be provided with the booklet in a hard copy format or electronically if they have provided you with an email address to which they are happy to have notices and documents associated with the tenancy served to.

You can find the most up to date version of the booklet here: https://www.gov.uk/government/publications/how-to-rent

Smoke and Carbon Monoxide Alarms

It is the responsibility of the landlord, other than where the landlord is a resident owner, to ensure that each level of the property being rented has a smoke alarm installed on each floor which has a habitable room (which includes a bathroom/toilet). This also includes an attic bedroom where there is no landing area. Although resident owners are exempt from this legislation, it is still advisable for the safety of themselves and their tenants that they meet this requirement.

The landlord must also provide a Carbon Monoxide (CO) detector in every room where there is a solid fuel burning appliance. This applies to all landlords, including those who are resident owners. Although it is not required as part of the legislation, the registration standards of Smart Move Sheffield require that the landlord installs a CO detector in any room where there is a fuel burning appliance, e.g. gas boiler or gas hob, to ensure the safety of their tenant(s). Further information about carbon monoxide poisoning can be found on the gas safe website here.

The landlord, or a representative of the landlord, is required to test the smoke and CO alarms provided on the start date of the tenancy agreement, and it is suggested that the landlord makes a record of this test. If you wish to include this as part of a tenancy check in whilst the tenant is present, it may be advisable to ask them to sign to confirm that you have completed this.

In addition to meeting the requirements of the legislation, it is the responsibility of the landlord to also ensure that the requirements of Sheffield City Council are met, as these may be more prescriptive.

Fire Safety Standards

A property can be a House in Multiple Occupation (HMO) without being a licensable HMO, and certain fire safety standards are required of non-licensed HMOs as well as licensed HMOs. A non-licensed HMO is any property which has three or more unrelated persons living there which does not meet the requirements of a licensed HMO (five or more unrelated persons living on three or more floors).

The fire safety standards for a non-licensed HMO can be found on Sheffield City Council’s website.

The fire safety standards for a licensed HMO can be found on Sheffield City Council’s website.

It is recommended that familiy accommodation has mains powered interlinked smoke detectors on each communal landing ceiling (including the attic bedroom ceiling if there is no landing) in addition to a heat detector in the kitchen. However it is a mimimum requirement to have 10 year lithium battery detectors on each communal landing ceiling (including the attic bedroom ceiling if there is no landing).

Legionnaires Disease

Legionella is the bacterium that causes Legionnaires’ disease, which is a potentially fatal form of pneumonia, and everyone is susceptible to infection. Outbreaks of the illness occur from exposure to legionella growing in purpose-built systems where water is maintained at a temperature high enough to encourage growth in hot water systems, but not hot enough to kill the bacteria. In addition, there is normally a peak in July - September of Legionnaires ’ disease due to the warmer weather heating up exposed pipework and tanks in loft spaces, which can coincide with students being away from the property over the summer period and water being stagnant.

Although legionella is usually found in larger buildings with more complex water systems, it can be found in smaller domestic properties with stagnant water, such as shower hoses, water tanks or pipework. Those properties with header tanks and cisterns which have been static or have dead-end spurs are more at risk, with properties with combi boilers being of lower risk.

The revised HSE Approved Code of Practice, Legionnaires disease: The control of legionella bacteria in water systems is clear is confirming that landlords and agents are legally responsible for taking the correct precautions to reduce the risks of exposure to legionella within rented properties. This document can be found at: https://www.hse.gov.uk/pubns/books/l8.htm

As a landlord your legal responsibilities include:

• Identifying and assessing the source of risk

• Managing any risks

• Preventing or controlling any risks

• Keeping correct records

• Carrying out of any remedial duties required

The HSE recommend that landlords appoint a ‘competent person’ who has the relevant skills to implement the control measures and strategies, is suitably informed, trained and assessed. Although you do need to carry out a risk assessment, you do not need to pay to have this carried out if you feel competent to do this yourself, however, unless you have a sound knowledge of legionella and water systems it is unlikely that you will be in a position, as a landlord, to be able to carry out an informed risk assessment

If you would like to do some further reading on this, the HSE webpage, which specifically talks about landlord responsibilities, can be found here.

HMO Licensing

A House in Multiple Occupation (HMO) is a property where there are 3 or more unrelated persons living together as their main residence, these can be either licensed or unlicensed depending on whether they meet further criteria.

A property where there are 5 or more occupiers, forming two or more households will be licensable by Sheffield City Council and will be subject to the property and landlord meeting the standards for licensing. Any other property containing 3 or more unrelated occupiers that does not meet these criteria will usually be an unlicensed HMO.

Mandatory Licensing is a statutory requirement and those landlords who fail to apply for a license for a HMO which has five or more occupiers, forming two or more households, will be at risk of prosecution with fines up to £20,000.

Further information on HMO licensing can be found on Sheffield City Council’s website.

Can Any House Become a Licensed or Unlicensed HMO?

Due to the implementation of the Article 4 Direction, landlords wishing to convert a house from a family property or property where there were only two unrelated persons, to one for three or more unrelated persons, must apply for planning permission if the property falls within the Article 4 area.

Planning permission will usually only be granted if less than 20% of the properties within a 200m radius of the property are HMOs.

Where you wish to convert a property to a licensed HMO, the property must meet the article 4 criteria in addition to the standards for licensing of HMOs.

Can a Property Lose its HMO Status?

Yes, if a property which has been granted status as a House in Multiple Occupation is let to persons who do not comprise two or more households, and/or less than three people the HMO status will be lost. To let the property as an HMO after this will be required to apply and receive planning permission for the change in status.

Tenant Fees Act

From June 1^st 2019, landlords and agents are no longer able to charge a number of fees in England for new tenancies signed on or after that date.

The ban is only relevant for contracts entered into after the 1st of June 2019. This will change after 1st June 2020 and will then apply to all tenancies

The only fees an Agent / Landlord can legally request you make in relation to a tenancy are prescribed as;

Rent - Unfortunately you're still required to pay rent!

A refundable tenancy deposit - Charging a deposit in relation to a tenancy is very common. You can find some guidance on this here. The only major change is that the deposit is now capped at no more than five weeks rent.

A refundable holding deposit - Holding deposits are less common within the Sheffield market. Holding deposits do what they say on the tin and are in place to 'hold' a property and again is capped, this time at no more than one weeks rent.

Payments associated with early termination of the tenancy (at the Tenants request) - If you're looking to leave your tenancy early the Landlord can charge you for their loss. Landlords can charge upto £50 for ammending a Tenancy Agreement. An Agent or Landlord must be able to demonstrate that anything above the £50 threshold is reasonable and provide evidence of these costs.

Utilities, Communication Services, TV License and Council Tax - You are still required to pay all of your bills, however, Landlords cannot overcharge tenants in relation to utilities.

A default fee for late payment of rent and replacement key / security device giving access to the housing, where required under the tenancy agreement - Landlords and agents can only charge a default fee where a tenancy agreement permits them to do so and one of the following applies:

1. You are late paying your rent • A default fee can be charged for late payment of rent but only where the rent payment has been outstanding for 14 days or more (from the date set out in your tenancy agreement) • Any fee charged by a landlord or agent cannot be more than 3% above the Bank of England’s base rate for each day that the payment has been outstanding. A fee which exceeds this amount is unlawful.

2. You have lost a key or security device giving access to the housing and require a replacement • Landlords and agents can charge a default fee for a lost key or equivalent security device. The landlord or agent must provide evidence in writing to the person liable for the payment to demonstrate that their costs in replacing the lost key or security device are reasonable. A fee which exceeds the reasonable costs incurred by the landlord or agent is unlawful. 

If the payment a landlord or agent is charging is not on this list it is not lawful, and a landlord or agent should not ask you to pay it.

The Government have issued a handy guidance document on what this means, you can find the guidance here.