Privacy Commissioner cracks down on rental sector: What landlords can and can't ask

Privacy Commissioner John Edwards. Photo / Christine McKay

"It's not about us going around beating them up," says the Privacy Commissioner on new guidance for the rental sector which has been worked on all year.

John Edwards said: "Everyone knows where they stand. This is an educative phase. Now, we have moved into the enforcement or compliance phase."

Landlords mainly owned one to two properties "and there will be some who don't get the message", he warned.

Property owners can't ask tenants for information on personal characteristics protected under the Human Rights Act.

That includes at the initial application stage, asking about relationships or family status, political opinion or religious or ethical belief, colour, race or ethnicity, physical or mental disability or illness and age except whether the tenant is over 18.

Nor can landlords collect information about employment status or whether someone is unemployed, on a benefit or on ACC, sexual orientation or gender identity, whether tenants have experienced or suffering current family violence, spending habits like asking for bank statements showing transactions, employment history or social media URLs.

"When selecting tenants, a landlord should never ask for [these things]," new guidelines say.

Privacy Commission on what landlords can and can't do. Photo / supplied

The test should always be 'do I need the information for lawful purposes connected to finding tenants and managing tenancies?', the office's landlord fact sheet said.

When checking on a preferred applicant, a landlord can collect more information required to carry out credit or criminal record checks, which can include the tenant's date of birth

Landlords can ask tenants for their name and contact information, identity proof, if they're 18 years or over, the number of people who will live at the property and the occupants.

Contact details and landlord references can be sought, along with consent for a credit report and criminal record check.

Pet ownership, plans about smoking and whether someone can be in New Zealand legally during the tenancy are other things allowed.

The office today launched a new compliance monitoring programme to ensure landlords, managers and agencies were not breaching the Privacy Act.

The office will make regular checks of rental agencies, as well as an annual survey to audit application forms, contract forms and privacy policies of letting agencies, property managers, and third-party service providers.

Tenants and prospective tenants need to have confidence in the way their personal information has been collected, used, stored, and disclosed by their landlord or property manager, Edwards said.

A new anonymous tip line has been established. Photo / supplied

Stats NZ says New Zealand has 527,853 rental properties of which 440,025 are privately owned. Around 1.4m New Zealanders are tenants.

The office has an anonymous tipline for people 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 now no excuses for over-collection and unauthorised use of personal information and there will be consequences for non-compliance," Edwards said.

"We have developed this guidance to clarify the rights and responsibilities of tenants and landlords under the Privacy Act. The guidance spells out what information may be requested at every stage of the rental process. We want to make it easy for landlords and property managers to know what they should and shouldn't collect, and for prospective tenants to understand what they can and can't be asked for," he said.

Property managers, landlords, and tenants' advocates were consulted in the development process. The office has also come out strongly against bad tenant groups online, working with administrators to close these down.

The Auckland Property Investors' Association welcomed the office's moves.

Kristin Sutherland, association president, said housing was an emotional issue.

Privacy Office issued new landlord/tenant guidelines today. Photo / Doug Sherring

"This guidance offers the sector some much-needed certainty and goes a long way to help build trust between landlords and tenants," she said.

The association was encouraged by the flexible and principle-based approach.

"This is a far cry from the usual heavy-handedness landlords have come to expect from government agencies," she said.

The guidance sets out the information landlords can and can't ask tenants in most cases while leaving ample scope for further inquiries to be made in appropriate circumstances, she said.

"To me, this is an acknowledgement that renting is not a cookie-cutter process. As long as landlords operate within the 13 principles under the Privacy Act, they should be able to dial-up and dial-down their inquiries in a way that supports the objectives of their rental business," Sutherland said.

The association intends to make inquiries into the mechanisms of the anonymous tip line for tenants.

"We want to make sure that this is a system of integrity with appropriate controls in place so that it is only dealing with genuine privacy complaints rather than adding superfluous compliance burden on landlords. I don't expect it to be a witch-hunt against landlords, but I want to be able to tell our members that honestly," she said.