The new Act also contains substantial new powers for landlords to evict tenants where they have been found to be in the country illegally.
These powers are based entirely around the service of notices by the Secretary of State telling landlords that some or all of the persons in the property do not have a Right to Rent. There are different options depending on whether the notices served identify only some of the occupiers or all of them.
If taken together, all the notices served by the Secretary of State identify that all occupiers in the property have no Right to Rent, then the ability of the landlord to evict is substantial. If this occurs the occupiers lose all of their rights under current legislation which protects tenants, and the landlord can immediately serve a 28-day notice to quit.
At the end of that notice period the landlord can use reasonable force to remove the occupiers or he can treat the Secretary of State’s notices and the notice to quit together as an order of the High Court.
This means that the landlord can instruct a High Court Enforcement Officer directly to remove the occupiers without further Court permission. Essentially this is allowing eviction without a Court order.
This new power has been of considerable concern to those who act for tenants who fear it will lead to eviction in many cases. However, the new power is not as impressive as it might seem.
Firstly, studies by the Home Office show that properties with illegal immigrants occupying them usually have a mixture of those who are here legally and those who are here illegally.
Secondly, the landlord may have some uncertainty as to exactly who is residing in his property in these cases and if he cannot be reasonably sure that the Secretary of State’s notices name every single occupier then the power to evict will not be available.
Different eviction processes exist where the notices provided only indicate that some of the people occupying the property have no Right to Rent. If the tenancy is one under the Housing Act 1988 then a new mandatory ground for possession, used by way of a section 8 notice, has been created.
This is the new ground 7B. A notice citing ground 7B must give the tenant 14 days notice of intended possession proceedings after which court proceedings can be taken. If the Court finds that all the tenants have no Right to Rent then they must award possession in the usual way.
If, however, it is a joint tenancy and one or more of the tenants do have a Right to Rent, but other tenants or occupiers do not, then the Court may order that the tenancy is transferred to those tenants that do have a Right to Rent and they will become the tenants alone.
However, this can only be done where possession is not being sought on any other ground and the landlord is only relying on ground 7B. Therefore, landlords will probably look hard to see if some other ground is also available to them. The transferred tenancy is not a new tenancy and so there will be no new six-month security against service of a section 21 notice for example.
However, the legislation does not specify how the deposit is to be dealt with and so it will likely need re-protecting and new prescribed information serving.
For non-Housing Act tenancies there is a new implied term in all tenancy agreements that the landlord can terminate the tenancy if one or more adult occupiers do not have a Right to Rent. This provision is retrospectively implied into all existing tenancies.
It is not totally clear how this is intended to work. It is not the case that the landlord is seeking to terminate the tenancy for a breach so it is not totally clear that s146 will apply, although it may do so.
It may simply be acceptable to give the tenant a notice telling them that the landlord is terminating and then go straight to Court for possession. This is likely to be an issue that finds itself occupying a senior Court at some point.
Finally, there is a case for possession for tenancies that are held under the Rent Act 1977.
However, the government appears to have forgotten that possession under the Rent Acts is always within the discretion of the Court and nothing here changes that fact. That said, the prospects of any tenant who has been in the country long enough to have a Rent Act tenancy not also having a Right to Rent is pretty low.
It may be the case that a landlord has identified that some or all of the occupiers in the property do not have a right to rent but that no formal notice has been served by the Secretary of State.
The Home Office has previously indicated that they will not serve such notices in all cases. If no notice has been served then the eviction powers detailed above do not arise and so a landlord will still need to rely on a clause in the tenancy agreement and a notice under section 8 citing ground 12 and asserting that the tenant is in breach of the agreement.
This remains a discretionary ground for possession however and while it seems likely that the Courts will give possession in these cases it is not guaranteed.
There are some further big changes here. Why the Government felt it was appropriate to increase the penalties for letting to illegal immigrants when there was little or no evidence that the current system was not already working and when there was still a great deal of confusion as to how the Right to Rent should work, is not clear.
However, they have made the change and it will no doubt come into force soon – possibly as early as the autumn given the strong political imperative to appear tough on immigration matters.
In the meantime we will need to wait and see what guidance emerges and how forceful the Home Office is prepared to be in fining and prosecuting those who make errors or do not comply.