References and privacy

A landlord can only ask for information which is directly relevant to renting a property or managing a tenancy. The landlord can not ask for information protected under the Human Rights Act, which includes:

• sex (including pregnancy and 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 prospective tenant is over 18)
• employment status (being unemployed, on a benefit, or on ACC)
• sexual orientation or gender identity

The landlord also can not ask:

• whether the prospective tenant has experienced or are experiencing family violence
• how the prospective tenant spends their income (for example, they shouldn’t be asked to provide a full bank statement showing individual transactions)
• the prospective tenant's employment history
• the prospective tenant's social media URLs

Once the tenancy starts, there may occasionally be reasons for the landlord to collect information about some of these matters, if it is directly relevant to managing the tenancy, e.g. making the premises more disability friendly.

When deciding whether to rent out a property to a prospective tenant, it’s lawful for a landlord to gather information to make this assessment, but they need to stick to just collecting information that is necessary and relevant. Some landlords will ask prospective tenants to complete a pre-tenancy application form.

It’s reasonable for a landlord to ask a prospective tenant for proof of their identity and for them to provide references about their renting history. This is because it can help the landlord assess things like whether the person has a history of looking after any properties they have previously rented and whether they have paid their rent on time.

When applying for a tenancy a landlord can reasonably ask for:

• Name and contact information
• Proof of identity
• Whether the applicant is aged 18 years or older
• Number of people who would live at the property
• Names of occupants who will not be on the tenancy agreement (e.g. flatmates, dependents), but not other personal details about non-tenants
• Contact details for landlord and non-landlord references
• Consent to contact referees (landlords can contact referees at this stage)
• Consent for a credit report and criminal record check (to be obtained only if the landlord is in negotiation with you about an offer of tenancy)
• Pet ownership (only if there are restrictions on pets allowed at the property)
• Whether any occupants are smokers (only if there are restrictions on smoking at the property)
• Whether you have a legal right to remain in New Zealand for the duration of a tenancy (only if the tenancy is for a fixed term)

Once the landlord has determined someone is the preferred applicant they can ask for:

• Any additional information needed to carry out credit or criminal record checks (e.g. date of birth or copies of ID documents)
• Evidence of ability to pay the rent – in addition to a credit report, landlords can ask for one other form of evidence (e.g. payslip, letter from employer, letter from Work and Income, evidence of rental payments in previous tenancy).

A landlord can lawfully ask for the tenant’s credit history as this may be relevant to their assessment of the tenant’s ability to pay the rent. If the landlord is using the pre-tenancy application form supplied by Tenancy Services, then this includes a section granting the landlord authority to carry out a credit check. A credit check should only be done if the landlord has reached the stage where they are planning to offer the tenant the tenancy, so at the end of the process.

However, a credit check can only be carried out with the tenant’s permission. The tenant can decline to give permission for a credit check, but their refusal to provide this information may be one of the factors that the landlord weighs up in their decision about whether to grant the tenancy.

A credit check will usually provide:

• the person’s full name and date of birth
• any known aliases
• information about the person’s occupation and employer
• any payment defaults, collection actions, court judgements, bankruptcies or other public notices information
• other recent addresses
• cross-references to other credit enquiries made against them
• the person’s credit rating.

You can find more information about credit checks and credit reports on the CAB website.

If the tenant does allow the landlord to undertake a credit check, then the tenant has the right to access the information and ask for any corrections as necessary.

There are many websites now in existence that collect up information about tenants and sell this data to landlords. These sites allow landlords and their agents to view ratings left on the website, along with credit and character checks, fines, and Tenancy Tribunal cases. This information is used to warn landlords off renting to some tenants – often the fact that a tenant has even been part of a Tenancy Tribunal case is used as a basis for ‘blacklisting’ them.

Tenant ‘blacklists’ don’t comply with the Privacy Act. The Office of the Privacy Commissioner is actively using its powers under the Privacy Act to investigate any ‘blacklists’ the Office becomes aware of and to take enforcement action against sites that are breaching the Act.

If a tenant becomes aware that information about them is being used in this way they could make a complaint to the Privacy Commissioner.

The Privacy Commission also provides a rental tipline, which allows people to anonymously report privacy concerns about the actions of a landlord. All reports are confidential, and if the Commission takes action against an agency or landlord they won’t disclose the name or personal details of the person making the tip.

In reality it is very hard to combat the impact of these kinds of databases, because the selection processes for tenants generally lack any transparency. One factor that may help to provide some protection for tenants is that when a tenant is “wholly or substantially successful” at the Tenancy Tribunal, then they can ask the Tribunal to anonymise their details in the reporting of the decision.