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Tenancy laws too invasive? May 23, 2019

Our country’s privacy watchdog has this week released a new set of guidelines, revealing the information that landlords should NOT be able to ask prospective tenants for during the application. Some of them are obvious… but some of them might surprise you if you’ve been house hunting in recent years.

Privacy Commissioner John Edwards spoke with host Stewart Sowman-Lund Thursday morning, Isla Christensen provides us with the transcript.


Stewart: What information have landlords reportedly been asking for?

John: We’ve found a number of tenants coming to us and saying, “Hey look my landlord wants to know, what I’ve had for breakfast and it feels a bit uncomfortable.”
So we thought we would try help out by setting some broad parameters by saying as a tenant you can always expect to be asked for this kind of stuff, but sometimes you might need to provide other types of information, but if you’re asked for other bits and pieces then you might want to ask the landlord what their up to. So things like; sports and hobbies, your employment status, your banking history and proof of insurance are the kinds of things you can expect.

Stewart: Even your age? I’ve seen on that list (privacy commissioner landlord guidelines), that seems sort of something that you would obviously put on an application?

John: Well-yeah, what we’re saying is that at a pre tenancy stage, there are some bits of information that they need. Then when you come to signing up the tenancy agreement, they may want to see proof of ID which might have the age on it. But if your talking about a marketplace for residential tenancies where about thirty people are applying for a property. If you’re hoovering up all that sensitive information about all those people, that could be excessive. Once you’ve decided who your preferred tenant is, you might be justified in saying you know well actually for legal reasons I need to know if you are over eighteen, can you show me some proof. That’s not date of birth, that’s just I am over eighteen.

Stewart: So how severe could these privacy breaches be? Could there be any form of liability? Or is it sort of just a slap on the wrist?

John: Well, at this stage, if a person suffered harm because of a over collection then it could lead to some liability. There could be damages awarded for a tenant who is actually harmed by a landlords attempt to actually collect this sort of information. When the new privacy law is passed next year, I will be able to issue compliance notices, so if tenants say, “look here's the property manager who is always asking for this really intrusive stuff,” we might actually decide to help them out by issuing a compliance notice and say, “hey you can’t do that anymore”.

Stewart: The problem I have with this is that I’ve encountered most of those things before when applying for applications and I didn’t realise that they were a breach of my privacy and I probably should have, but saying I did, I probably still would have included that information because these are the people deciding if I have somewhere to live. I mean, what about the people who are in a far more difficult situation than I am when it comes to a living situation, they are probably just going to give the information out to get a roof over their head, aren’t they?

John: Yes, there certainly is a power imbalance here and that’s one of the reasons we are trying to support people to stick up for themselves. Even if they don’t feel like they are able to and give over all the information that the landlord asks, then once they are comfortable in the place they can send that information over to us and give us their name, then we can go out to that landlord and say, “hang on this looks a bit dodgy to us.”

Stewart: Is there going to be a more intense system put in place? Is this something that is being looked at where it may no longer be a problem in the future? Or stricter guidelines inforced?

John: Well I hope so, I know officials are looking at the residential tenancy act, so they  may be having a look at this area as well. But when the new privacy act passes next year, as I say, we will have more tools to be able to enforce that standards.

Stewart: How does our tenancy system stack up against the rest of the world, taking into account that we will have the new tenancy legislation? Does it stack up to other countries?

John: That’s a good question. I don’t really know as we haven’t done a survey of other jurisdictions. But i’ll let you in on a little secret, this guidance that we’ve issued - we kind of stole from another jurisdiction. So they had this idea of green light, amber light, red light for what information could be collected. We thought that was a really good idea and such an easy way on conveying information to landlords and tenants, so we’ll borrow and adapt it for the New Zealand situation.

Stewart: Just last week, there was a horrific example of what we are talking about here, where the landlord turned away an application because they believe that Indians are dirty. What do you think when you hear that?

John: What I think is that we have areal problem in this country and that we need to address it. It is unlawful to deny someone a tenancy based on their ethicity, so these are not just privacy issues, they are human rights. I would hope that, that landlord came to the attention of the human rights commision.

Stewart: Does it come down to a culture that we have in New Zealand around discrimination in terms of tenancy?

John: I don’t know the answer to that, I haven't seen research around it. What I am trying to do is help landlords stay out of trouble by not over collecting information and at the same time providing support for some tenants who are in a vulnerable position. If they have a piece of paper from us that they can say to the landlord, “hey look the privacy commissioner thinks your form is a bit dodgy,” then that might help them.

Stewart: Do you think the landlord might see that piece of paper and go alright we’ll go with another tenant?

John: Well that is a risk but as I say, there is no reason for the tenants to take that burden on themselves. They can bring it to our attention and maybe they weren’t going to get the tenancy anyway, so after they have been denied they might want to make a complaint to us.