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Privacy Commissioner Issues, Then Withdraws Tenancy Privacy Guidelines

ByDonna Jones

In May the Privacy Commissioner released new guidelines for the collection of potential tenants’ personal information during the tenancy application process. New Zealand’s privacy watchdog cautioned that some of the information landlords were asking of tenants could be used to discriminate against them, and therefore breached the privacy act.

Then, at the beginning of June the Privacy Commissioner withdrew the guidelines following concerns expressed by the real estate industry.

What information can landlords ask tenants for?

The motivation behind the revision of these guidelines was the shocking late 2018 news that certain landlords and property managers were consistently demanding bank statements from possible tenants as part of their application.

In the website post (since taken down), Privacy Commissioner John Edwards stated, “landlords are entitled to collect personal information where that is necessary for their lawful purpose of selecting a tenant”. The post broke down pieces of personal information a landlord might ask a tenant for into “Always justified”, “Sometimes justified” and “Almost never justified” sections.

One News reported on the release, including a graphic detailing the three sections:

The post from the Privacy Commissioner also included a section outlining personal information landlords can ask tenants for once they have successfully been chosen as a new tenant for the given property:

REINZ responds, pointing out impractical contradictions in guidelines

The Real Estate Institute of New Zealand (REINZ) are in favour of industry regulation to ensure that “consumers have adequate protections”. So, it was interesting to see that Privacy Commissioner didn’t publicly consult any real estate industry bodies when establishing the new guidelines.

In a press release, Bindi Norwell, REINZ CE, said the organisation welcomed the guidelines, but pointed out some oversights of current legislation that will result in mixed messages and confusion for tenants mindful of what information they should be giving landlords:

“While we welcome the guidelines issued by the Privacy Commissioner, they are likely to cause confusion between landlords and tenants due to some of the discrepancies between different government departments. If these discrepancies aren’t resolved, then it may result in an increased workload for the Office of the Privacy Commissioner if tenants complain unnecessarily.”

Norwell voiced concern that the guidelines stated that asking a tenant’s age is unjustified, when the Residential Tenancies Act requires landlords to make sure tenants are over 18.

She noted the guidelines suggest that tenant credit checks are ‘sometimes justified’, when most REINZ Property Management Members routinely perform credit checks because it’s an expectation of landlords running their rental property assets as a business.

The REINZ CE also mentioned that Ministry of Social Development advice for those seeking a rental property is to provide proof of employment and a bank statement, which is at odds with the Privacy Commission’s new guidelines.

Privacy Commissioner withdraws guidelines and meets with REINZ

Following negative feedback from REINZ and other property management industry players, the Privacy Commissioner has withdrawn the ‘Privacy Guidelines: Collection of Personal Information by Landlords’.

As a result of the concerns, the guidelines are now being reviewed. In a newsletter following the REINZ press release, the Privacy Commissioner said, “REINZ is shortly meeting with the Office of the Privacy Commissioner to provide further feedback and comment on the Guidelines and will update members as matters progress.”

What to do if you feel your privacy has been unfairly breached?

If you’re a renter and feel uncomfortable providing personal information in tenancy applications, feel free to drop us a line for more information around how this information is used and whether or not you are legally required to offer it up.

If you’re a landlord and aren’t sure where you stand following the issuing and retracting of the new guidelines, please get in touch and we can talk you through our recommended tenancy application processes.

Images:

‘Please!’ by Josh Hallett via CC BY 2.0.

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