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Privacy Commissioner's new guidelines for NZ landlords

Anna
Anna
18 November 2021

Photo by Thomas Lefebvre on Unsplash

The Office of the Privacy Commissioner has released new guidelines for the rental sector designed to protect potential tenants' rights and privacy and ensure that only necessary information is collected from them.

The new monitoring program has been launched to proactively investigate and review landlords and property managers to check compliance with New Zealand's Privacy Act 2020. This program investigates whether tenants' personal information is collected, used, stored, and disclosed appropriately.

New guidelines define what landlords can and can't ask at different stages of the application process, when preparing tenancy documents and during the tenancy.

If you're using myRent to advertise rentals, run tenant checks or manage tenancies, we're making necessary changes to ensure you are compliant. And the process of finding and keeping tenants remains as seamless and smooth as possible.

Here we've summarised the important takeaways and things that commonly (and at times with best intentions) landlords get wrong:

When organising viewings, landlords should only collect tenants’ names and contact information

The option to complete an application can be made available for tenants, but they shouldn't be required to do so.

Landlords should never ask for tenants’ employment status (whether unemployed or on a benefit), relationship status, and other personal characteristics

It is considered unnecessary, irrelevant, and unreasonably intrusive to ask for information about applicants’ personal characteristics when selecting tenants. Some personal information you should never specifically ask for when selecting tenants:

  • gender
  • religious or ethical beliefs
  • race or colour
  • nationality, ethnicity, origin or citizenship
  • physical or mental disability or illness
  • age
  • political opinion
  • employment status, e.g., if unemployed or on a benefit
  • marital and family status – including any responsibilities for dependants
  • sexual orientation

When creating a listing and writing about "ideal tenants", it's essential to take care of your wording. Consider using:

  • Pays the rent on time
  • Looks after the property
  • Would suit an avid gardener
  • Enjoys spacious outdoor areas

Instead of:

  • Must be employed
  • Professional couple
  • No children
  • Women only

Any evidence of tenants ability to pay rent can only be requested from the shortlisted applicants who are likely to be suitable tenants

When checking on a preferred applicant, a landlord can collect more information required to carry out credit or criminal record checks. The evidence of tenants’ ability to pay rent can also be asked but only of a shortlisted group of people. The evidence can be in the form of a payslip, a letter from the employer, a letter from Work and Income, etc.

Landlords can only ask if the applicant is over 18 on the pre-tenancy application form

Landlords can ask preferred/shortlisted tenants for their date of birth as this is needed to perform credit checks.

Landlords can never ask to see applicant’s bank statements

Although tenants can choose to provide a statement showing total balance, as a landlord, you are only allowed to collect no more personal information than is necessary to confirm that the person is a suitable tenant for your property. For example, requesting a rent statement to understand tenants spending habits will be considered unreasonably intrusive under the Privacy Act 2020.

However, suppose your tenant falls behind on rent and is asking for a temporary rent reduction or negotiating a payment plan. In that case, the landlord can ask to see a bank statement to show that the tenants have taken steps to improve their financial management.

The tenant's personal information should only be retained for as long as it's needed

Once the landlord has no good reason to keep the tenant's personal information, it must be securely disposed of. Under the Residential Tenancies Act s123A (1), landlords must keep copies of certain tenancy documents for the duration of the tenancy and 12 months after the termination. These include:

  • Tenancy agreement and variations
  • Inspection reports
  • Copies of advertising
  • Notices and correspondence between a landlord and a tenant or prospective tenants

The latter covers people the landlord offered a tenancy and people who entered negotiations for a tenancy. Generally, you shouldn't keep information about people who just viewed your property or who applied to rent but were unsuccessful.

Pet ownership plans, smoking status, and whether someone can be in New Zealand legally during the tenancy are all things still allowed to be asked.

If you are ever in doubt whether you should or shouldn't ask something, the test should always be 'do I need the information for lawful purposes connected to finding tenants and managing tenancies?’

We understand that some of these guidelines might be surprising for some. However, whether you agree with these guidelines or not, rules are rules. The Privacy Commissioner office has moved into the compliance phase. So landlords should be extra vigilant with their obligations and responsibilities.

As a company, we align our interests with those of our customers. We never sell your data, and we always protect your privacy. Our intention is to support and educate our users - both landlords and tenants - and help them stay on the right side of the law. We try to share helpful information and assist self-managing landlords in managing their tenancies professionally and with the best intentions. We're making changes to our platform to comply with the most recent guidelines. We will also be sharing new improvements with the Office of the Privacy Commissioner to guarantee compliance with the present Act.

Some useful links:

The information contained in this article is exclusively for promotional purposes. It does not in any way constitute legal advice and should not be relied upon as the basis for any legal action or contractual dealings. The information is not and does not attempt to be, a comprehensive account of the relevant law in New Zealand. If you require legal advice, you should seek independent legal counsel. myRent.co.nz does not accept any liability that may arise from the use of this information.

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