Many rental agencies may be breaching Privacy Act according to new guidelines on tenant applications

Luke Appleby
Source: 1News

New Zealand's privacy watchdog has issued a new warning to landlords asking prospective tenants for information which could be used to discriminate against them, as the practice remains widespread.

The Privacy Commission has warned landlords that they shouldn't be collecting information which could be used to discriminate against potential tenants - but most do.

In a post last week , Privacy Commissioner John Edwards said that "landlords are entitled to collect personal information where that is necessary for their lawful purpose of selecting a tenant".

The guidelines were prompted by revelations late last year that some landlords were routinely asking possible tenants to provide bank statements.

The post outlined pieces of information a landlord is not justified in asking a tenant to provide, ranging from "always justified" to 'sometimes justified' and finally 'almost never justified'.

The guidelines state that, because it is illegal under the Human Rights Act for agencies to discriminate against potential tenants based on factors like age, marital status or employment, they should not be collecting that information at all.

"Landlords should only collect the minimum amount of personal information necessary to make that decision," Mr Edwards said.

A list of information that a potential landlord is justified - and not justified - in demanding from prospective tenants.

The pieces of information are divided into three sections - "Always Justified", "Sometimes Justified" and "Almost Never Justified".

A section also outlines information that rental agencies can ask tenants to provide only after they have been accepted as the new tenant for a property.

1 NEWS has examined several tenancy application forms from many of New Zealand's largest rental companies, and found that nearly all of them ask a question which is "almost never justified" under the new guidelines.

A spokesperson for the Privacy Commission said tenants who are subject to the "overcollection of information" through a tenancy form should raise it with the landlord first, before considering lodging a complaint with the Commission.

"It may be a breach of an agency's obligations under the Privacy Act to collect information that is unnecessary or unreasonably intrusive," the spokesperson said.

"This collection/use may also be a breach of the Human Rights Act if information, like age or gender, is used to discriminate against a potential tenant."

The Commission acknowledged that "because of the competition for available properties, many people will feel they have no choice but to hand over more information than is necessary.

"Tenants can send us examples of non-compliant forms, even anonymously, and we will consider getting in touch with the landlord and giving them our advice.

"If they disregard [that advice], they run the risk of findings against them, and the need to compensate prospective tenants who are harmed by their actions."

The Commission noted that the 2018 Privacy Bill, currently at the Second Reading stage, could soon allow the Commission to issue compliance notices to rental agencies, which would be enforceable by the Human Rights Review Tribunal.


Bindi Norwell, Chief Executive of the Real Estate Institute New Zealand, said her organisation welcomes the guidelines - but also says there are some conflicts with current legislation.

"While we welcome the guidelines, they are likely to cause confusion between landlords and tenants and may result in an increased workload for the Privacy Commission if tenants complain unnecessarily," Ms Norwell said.

Ms Norwell said landlords are required under the Residential Tenancies Act to make sure tenants are over 18, but the guidelines say asking a tenant's age is unjustified.

She also said current Ministry of Social Development advice was for people seeking rentals to provide a bank statement and proof of employment - again, inconsistent with the guidelines.

"Of concern is the suggestion that credit checks are 'sometimes justified'," Ms Norwell said.

"Landlords run a business and as part of that need to ensure tenants can meet their financial obligations - most REINZ Property Management Members always performed a credit check as this is an expectation from landlords to ensure a person does not have a history of being unable to pay off debt.

"Failure to do this would potentially be negligent on a property manager's part and could result in them losing the landlord's business.

"REINZ is disappointed that it was not consulted on these guidelines as we would have been able to provide some valuable feedback to the Commissioner as to how some of these recommendations would work in practice."

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