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Privacy Commissioner cracks down on compliance in rental accommodation sector

29-Nov-2021 11:00:00

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The Office of the Privacy Commissioner (OPC) has issued the following media release regarding its launch of a new compliance monitoring programme to ensure that property managers and agencies are acting in accordance with the Privacy Act.

Through the compliance monitoring programme, OPC will carry out regular checks of rental sector 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.

Privacy Commissioner John Edwards says 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. For this reason, OPC has also established an anonymous tipline to enable tenants or prospective tenants to report concerns about the handling of their personal information.

“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,” says Mr Edwards.Alongside the new compliance monitoring programme, OPC has launched new guidance for tenants, landlords and others in the rental accommodation sector.

“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,” says Mr Edwards.

Property managers, landlords, and tenants’ advocates were consulted throughout the development process. OPC has also come out strongly against ‘bad tenant’ groups online, working with administrators to close these down.

The  and factsheets are available here:https://privacy.org.nz/your-rights/renting/

Consequences for non-compliance include:

  • Warning letters
  • Access directions
  • Compliance notices
  • Referral to the Human Rights Review Tribunal
  • Public Interest Inquiry
  • Public naming of agency

The penalty for failure to comply with a Compliance Notice is a fine of up to $10,000.

Tenants or prospective tenants who are concerned that their information has been compromised, or that too much is being asked of them, can contact the Office of the Privacy Commissioner anonymously to report a privacy concern.

Source: Privacy.org.nz

Harcourts’ Response

In 2020, John Edwards spoke to our Harcourts property managers about the changes to the Privacy Act. Peter Jackson, Chief Mediator, Human Rights Commission spoke to our property managers at HX 2021, the Harcourts conference in May, about the importance of upholding human rights in New Zealand and the grounds for discrimination.

Harcourts property managers will continue to upskill on all matters relating to privacy and human rights, and we are constantly reviewing our tenancy application process to ensure that we comply with all aspects of the Privacy Act.

There are times when landlords request information from property managers without realising that they may be breaching the privacy of a prospective or current tenant. If this occurs, Harcourts property managers will take an educational approach with the landlord, whilst ensuring that no breach of the Privacy Act occurs, protecting the landlord and themselves from a potential fine of up to $10,000.

Information you should not collect

There is some personal information you must never specifically ask for when selecting tenants. You should also be careful about collecting this information at any stage in the rental process.

When selecting tenants, a landlord should never ask for:

  • personal characteristics protected under the Human Rights Act: sex (including pregnancy or childbirth)
  • relationship or family status
  • political opinion or religious or ethical belief
  • colour, race or ethnicity (including nationality or citizenship)
  • physical or mental disability or illness
  • age (other than whether the tenant is over 18)
  • employment status (being unemployed, on a benefit or on ACC)
  • sexual orientation or gender identity
  • whether the tenants have experienced or are experiencing family violence
  • tenants’ spending habits (e.g. bank statements showing transactions)
  • employment history
  • social media URLs.

It’s unnecessary, irrelevant and unreasonably intrusive to ask for information about these personal characteristics when you’re selecting tenants. It’s unlikely that you could use this information for a lawful purpose during the selection process, due to prohibitions on discrimination under the Human Rights Act.

These articles were featured in Property Management Focus, Issue 11 2021

Topics: Property Management, compliance, Privacy