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This paper considers the evolution of government policies regarding the provision of housing in the private rented sector and the regulation of landlord behaviour by mapping this onto known regulatory theory. It argues that the current regulatory trajectory is highly problematic both from the perspective of land law (by further attenuating the conception of property rights) and indeed regulatory compliance.

The approach maps successive governments’ policy stance, what is known of the configuration of the sector and the current demand for housing against evolving regulatory theory (in particular compliance). The piece draws on both property theory and economic analysis.

Enrolling private sector landlords to enforce policies, other than those relating to the landlord and tenant relation (as indicated by the “right to rent” provisions), and attempts at professionalizing the sector may be highly problematic. Furthermore, the growth of regulation may impose an increasing regulatory burden on a significant proportion of the sector, namely, the smaller landlord especially those owning who own only one property.

The hypothesis has not been tested aside in a generalized manner by making reference to the evidence obtained by other researchers and landlord associations. It is for other researchers who may wish to test the hypothesis empirically.

This paper includes a view that has not (to the author’s knowledge) been expressly articulated by Government or through its policies and is one which it may wish to reflect upon.

This paper adopts a novel stance by deploying regulatory theory with understandings of property to highlight potential adverse effects.

The Immigration Act (2014) at Part 3 established a new regime with private landlords incurring penalties (and potentially criminal liability from 1 November 2016) if they allow a person disqualified, by reason of migration status, to reside in a property as their only or main home. Known colloquially as the “right to rent”, the provisions restrict access to accommodation and impose onerous duties on landlords to check tenants’ migration status. The purpose of this paper is to consider how a change in the emphasis of regulation introduced by the provisions, resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable.

Using the lens of Foucault’s governmentality, it is possible to see how Government sought to shift the locus of control from itself to the landlord, which through its legislative and policy stance resulted in such fierce opposition as evidenced by the first instance challenge to the provisions in R (Joint Council for the Welfare of Immigrants) v SS for the Home Department [2019] EWHC 452 (Admin).

The focus of regulation introduced by the provisions resulted in the coalescence of opposition by landlords and renters in a way that historically would have been unthinkable. Landlords and renters are usually thought of as being in opposition, but not so here. This may offer hope for more productive regulatory outcomes where both parties work together. It may also suggest that encroaching on the notion of private rights and interests in law could result in counterproductive consequences.

Unlike Foucault’s notion of surveillance and control, governmentality shifts the emphasis from a hierarchical conception of government to practices including self (imposed) governance – with here, the landlord being required to act as a proxy for border agents. This suggests that there may exist boundaries beyond which, in a given context, it might be unwise for Government to step without adverse consequences. Foucault’s ideas provide a starting point, but do not give us all of the answers.

The coalescence of opposing actors can be a significant force to challenge government given the extent of their knowledge of the given context. It may also suggest a route to a more collaborative form of regulation.

A novel theoretical take on an issue of concern raised by practitioners and interest groups alike.