Landlords have some control over who they rent their properties out to (eg, they may decide they don’t want to rent to people who have pets), but they must not unlawfully discriminate against people when deciding whether or not to offer them a place to rent (s 12(1) RTA). They also can’t tell someone else, like a property agent, to discriminate on their behalf.
What are the unlawful grounds of discrimination?
Unlawful grounds of discrimination (s 21 Human Rights Act) are:
- sex (which includes being pregnant)
- marital status (which includes being single, married, widowed, separated or divorced)
- religious beliefs, ethical beliefs (which means lack of religious belief) or political beliefs
- colour, race or ethnicity
- sexual orientation
- employment status (which includes being on a benefit or unemployed)
- family status (which includes having children or no children, being married or in a civil union, or being related to a particular person)
- age (with some exceptions) and
- disability (with some exceptions)
The law also protects people who are already tenants. So if a landlord finds out that a couple aren’t married, and terminates the tenancy or refuses to renew it because of this, then this is unlawful discrimination (on the basis of family status).
Prospective tenants have the right to make up their own mind as to whether a property will suit them. For example, whether a property next to a busy road is suitable for kids. By contrast, the landlord cannot simply predetermine that their property is unsuitable for particular tenants on account of one of the factors in the list above. Advertising for rentals should not include factors that are discriminatory, eg, "Would not suit children" or "Suitable for professional couple".
There are some important exceptions regarding discrimination when providing accommodation, including:
- renting to 16 and 17 year olds (see "Renting to minors", below),
- disability (see more information below),
- choosing flatmates or private boarders, and
- special types of accommodation, like retirement homes and school hostels.
What can be done about discrimination?
Without evidence (eg, an advertisement or text messages), it can be very hard to prove that a landlord has unlawfully discriminated against someone.
If there is good evidence of unlawful discrimination, a complaint can be laid with the Human Rights Commission, or the Tenancy Tribunal (s 12A RTA). Both courts are serious about dealing with discrimination against tenants. The Tenancy Tribunal can award exemplary damages against a landlord of up to $4000 (s 12 RTA and Schedule 1A RTA), however the penalties under the Human Rights Act can be higher.
Renting to minors
When considering whether to grant a tenancy, it is unlawful for a landlord or their agent to discriminate against a person because they are 16 or 17 years old (s21(1)(i) and s 53 Human Rights Act).
A person can sign a tenancy agreement if they are under 18, but it can’t be enforced against them unless they or the landlord apply to have it ‘ratified’ in the Tenancy Tribunal. An exception is if the tenant is 16 or 17 and married or in a civil union – then they will be treated as if they were 18 when they signed the agreement (s13A(1)(h), s 14 RTA).
To ratify a tenancy agreement, the tenant or the landlord need to apply to the Tenancy Tribunal. A mediator will go through the tenancy agreement with both of them, and if they agree the agreement is fair, they can write a mediated order which then gets confirmed by the Tribunal. Once the agreement is ratified by the Tribunal it becomes legally binding and they’ll be treated as if they were 18 when they signed it.
If a tenant signs a tenancy agreement before they turn 18, it will become legally enforceable from their 18th birthday (or the date of their marriage / civil union, if this happens earlier) unless they apply to the Tenancy Tribunal within ten working days after their birthday / marriage / civil union to let them off the obligations in the agreement.
The standard Tenancy Services residential tenancy agreement has a tick box that notes whether the tenant is under 18.
People with disabilities
It is illegal for a landlord to refuse to rent to a person because of their disability, or to treat them differently, eg, charging extra rent.
Sometimes though, the issue is with the rental property itself. The landlord can decide not to rent to a person with a disability if they need special facilities or services and it would be unreasonable to expect the landlord to provide them.
If, however, the special requirements are “reasonable” (eg, minor changes or alterations to the accommodation – not necessarily paid for by the landlord), the need for these reasonable accommodations should not be grounds for refusing to rent the house or flat. Examples of minor changes might be putting in a railing next to steps or in the bathroom.
If a landlord refuses to rent to someone because they have a mental illness, this is a clear ground of unlawful discrimination. It is very unlikely that there will be a justifiable reason for excluding this person as their disability is unlikely to require the landlord to make or allow any changes to the property to meet the tenant’s needs.
Further information about discrimination on the basis of disability or impairment, and some helpful case studies, can be found here.
Tenancy Services has a list of organisations that help disabled people to find rentals, here. Some of these support organisations might also be useful.
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