Updated Privacy Laws and what that means for Landlords and Property Managers

There has been an update of the Privacy Laws and compliance monitoring program by the Office of Privacy Commission. It is intended to ensure Landlords and Property Managers are acting in accordance with the Privacy Act.

What you can and can’t ask tenants

While it had been signalled earlier in the year with online discussion around ‘bad tenant blacklists’, the Privacy Commission has now come out with guidance and detail around monitoring and compliance for tenant information gathering, to ensure those in the rental industry are acting in accordance with the Privacy Act.

At Point Property Management, we are aware of our responsibilities under the Privacy Act, and what we can and can’t ask tenants when they make a rental application.

Below is the information you may ask for as part of your tenant screening and background check process. And some certain information should only be requested after the initial vetting phase.

• Name and contact details
• Whether the tenant is 18 years or older
• Pet ownership status
• Whether they are a smoker
• Contact details for character references
• How many people will be renting the property
• How long do they expect to stay as a tenant at the property
• Credit report* (the tenant must give permission first before you run this check)
• Criminal record check* (the tenant must give permission first before you run this check)
• Date of birth*/Proof of age*
• Name and contact details of an emergency contact*
• A Tenancy Tribunal search*
• Proof of identity*
• Proof of employment/income*

* You should only request this information from your preferred tenant, not at the start of the application stage. This minimises the amount of personal information you collect on prospective tenants.

You cannot ask for information regarding their:

• Nationality, ethnicity, origin or citizenship
• Physical or mental disability or illness
• Personal beliefs or opinions
• Marital and family status
• Gender and sexual orientation
• Rent paid previously
• Current expenses
• Proof of insurance
• Employment history

You cannot collect information about your tenant from other sources (e.g. social media) even if consent is given.

Consequences of discrimination and breaching privacy

Discrimination during the tenancy process can come at a cost too—up to $4,000, as one landlord found out after treating a blind woman’s tenancy application differently.

If you are basing your tenant selection on criteria such as age, nationality, employment status, gender or sexual orientation—or shopping habits—then this is grounds for discrimination.

As for breaching privacy, from a legal standpoint, landlords can collect personal information:

• that is necessary and relevant to the tenancy,
• to verify your identity, and,
• to make an assessment about what kind of tenant you might make.

“Landlords should only collect the minimum amount of personal information necessary to make a decision on the tenancy application,” states the Office of the Privacy Commissioner website.

“While it might be lawful for a landlord to collect information such as wage slips and credit reports to assess a tenant's ability to rent, collecting bank statements to see how money was spent is unfair or unreasonably intrusive.”

Fines of up to $10,000 are applicable for not complying with the Privacy Act.

The new privacy laws do make it more difficult for landlords to establish tenants' rental backgrounds.

So determining who will be a great tenant requires expertise and experience – picking up on subtle cues that come from years of experience.