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The new compliance monitoring programme: What landlords can and can’t ask

Earlier this month The Office of the Privacy Commissioner (OPC) launched a new compliance monitoring programme to ensure landlords, managers and agencies are not breaching the Privacy Act.

“It’s not about us going around beating them up” says the Privacy Commissioner, John Edwards, on the new guidance for the rental sector. “Everyone knows where they stand. Now, we are moving into the enforcement or compliance stage”.

No excuses for over-collection

The Office will make regular checks of rental agencies, as well as an annual audit of application forms, collection notices, contract forms and privacy policies of letting agencies, property managers, and third-party service providers. They also opened up an anonymous tip line for tenants to report concerns about personal information handling.

“As we move into this compliance phase, rental sector agencies must be aware of their obligations and responsibilities. There are no excuses for over-collection and unauthorised use of personal information and there will be consequences for non-compliance”, Edwards said.

What landlords should never ask

Property owners can’t ask tenants for information on personal characteristics protected under the Human Rights Act. Therefore landlords should never ask for information about relationships or family status, political opinion or religious or ethical beliefs, colour, race or ethnicity, physical or mental disability or illness, age (except where the tenant is under 18), sexual orientation or gender identity, employment status (including being unemployed, on a benefit or on ACC).

Landlords are also crossing the line when they are asking for information about whether tenants have experienced or suffering current family violence, spending habits (like bank statements showing transactions), employment history or social media URLs.

So, what can a landlord ask? 

Only ask what you need

According to the OPC’s landlord fact sheet the test should always be “do I need this information for lawful purposes connected to finding tenants and managing tenancies?”

There are three stages landlords go through in their selection of tenants. The process starts with people viewing the property. At this stage, landlords can only ask people for their name and contact information.

When applying for a tenancy, landlords can collect more information. This includes collecting contact details for references and consent to contact these referees. And though consent for a credit report and criminal record check can be asked, these documents can only be obtained if the landlord and prospective tenant are in negotiation about an offer of tenancy. Moreover, the landlord can only ask the tenant whether he has a legal right to remain in New Zealand for the duration of the tenancy when the tenancy is fixed term.

Moving forward to the shortlisting phase, property owners can ask additional information needed to carry out credit or criminal record checks (e.g. date of birth or copies of ID documents). In addition to a credit report, tenants can be asked to provide one other form of evidence to show the ability to pay rent. This could be a pay slip, a letter from the employer or Work and Income or evidence of rental payments in previous tenancy. However, landlords are not allowed to ask for detailed bank statements to see how tenants spend their money.

Photos and notes from flat inspections

When managing the tenancy property owners can keep collecting information to enforce their rights and meet the obligations under the Residential Tenancies Act. This includes photos and notes from flat inspections. However, this information must not intrude unreasonably into the tenants’ personal affairs. For example, the photos shouldn’t include people in the shots or focus on personal items, unless those items contravene with the tenancy agreement.

More guidance and certainty

The launch of the new compliance monitoring programme didn’t come as a surprise to us at The Information Privacy Company. Since the new Privacy Act came into force on 1 December 2020, we knew The Office of the Privacy Commissioner would, at some stage, crack down the rental sector. Clashes between landlords and tenants in regard to personal information handling regularly hit the news with the notorious tenant blacklists playing a prominent role. This monitoring programme will give landlords and tenants more guidance and certainty and will help to build trust between these two stakeholders.

How we can help

This however also means that the OPC will be stricter on personal information collection and will undertake regular checks and investigations, including mystery shopping. Are you worried about what information you can or can’t collect as a landlord? And how you should handle this personal information? Get in touch with us. We now provide a special package tailored to landlords and are happy to answer the questions you have related to this new programme.