The following answers reflect our current understanding of rental business operation under the COVID-19 Protection Framework. In putting these answers together, we have consulted guidances from the REA, REINZ (here and here), CHASNZ, business.govt.nz and Unite against COVID-19. These answers and our views are subject to change to reflect the (soon to be available) Tenancy Services guidance and the rapidly changing environment we, and the rest of the world, find ourselves in vis-à-vis the COVID pandemic.
We will continue adding to this FAQ document. Please check back soon.
Q. Can I ask current/prospective tenants for their vaccination status?
In general, no.
Information privacy principle 1 requires landlords to only collect information from tenants that is necessary for a lawful purpose that is connected to their functions/activities as landlords. In general, we don’t see how a tenant’s vaccination information is a linchpin to any of her landlord’s duties or rights.
In the (general) case of prospective tenants, vaccination is not a determinative nor absolute indicator of an applicant’s ability to pay rent. In the (general) case of current tenants, there is no lawful basis for landlords to withhold the performance of duties (such as repair and maintenance) for unvaccinated tenants. In many cases, there are several viable workarounds for landlords to carry on the business of renting without having to find out whether their tenants are vaccinated.
In exceptional circumstances where the collection is absolutely necessary, the landlord will need to be able to clearly articulate a legitimate reason and demonstrate that he has no other viable options.
Q: I would like to host an open home at my rental, can the tenant refuse consent because of the pandemic?
COVID or no COVID, a tenant has always been able to refuse the landlord access to the property so long as she acts reasonably. The Tenancy Tribunal has recently ruled that under Level 3, tenants can reasonably refuse consent citing the risk of COVID. It is unclear at this stage how the Tribunal would still adjudicate the same reason under the COVID-19 Protection Framework. Much will likely depend on the specifics of the scenario. For example, it is more reasonable for a vulnerable tenant to withhold consent to access because of the risk of catching COVID than it would be for an otherwise healthy tenant. But hey! We are not armchair adjudicators!
It is worthwhile to note that REA requires agents to obtain the tenant’s prior consent for unvaccinated people to enter the property as part of the sales process or require that all onsite sales activities be subject to My Vaccine Pass verification. It is would be appropriate for self-listing landlords to adopt the same rules.
See here for more information on hosting open homes at rental properties under the COVID-19 Protection Framework.
Q: Can I, as a homeowner or landlord, ask tradies if they are vaccinated?
For work at your home: You are the king of your castle. You decide who comes onto your property to perform work. While this doesn’t necessarily mean all tradies you make inquiries with should have to disclose their vaccination status, you are quite within your right to only hire vaccinated workers and verify their vaccination information to your satisfaction.
For work at your rental: The thing to be mindful of is that there is no basis to withhold maintenance/repair/HHS compliance work simply because the tenants or tradies are not vaccinated. As you are unlikely to come into contact with the tradie while work is being carried out, we don’t think there is a basis for you to know whether he is vaccinated. The issue is less about your right to know and more about your tenant’s right to feel safe. Your rental is your tenant’s home, she should have the same right as you would in your home i.e. to be satisfied, within reason, that the tradie does not expose her to too great a risk of catching COVID.
Given that at the initial stage of our vaccine rollout, many trade businesses have either required their workers to be vaccinated or redeployed unvaccinated workers to non-customer-facing work and given Auckland’s high vaccination rate, we don’t consider the issue of tradies’ vaccination to be a material risk for most Auckland landlords.
Q. When will the special termination rules kick in under traffic lights?
Not likely, for the time being.
A few things have to happen first before the Minister of Housing can make a COVID-19 tenancies order (CTO). One of them is that there has to be a COVID-19 public health order in place restricting people from moving home. Given that there is no restriction on people moving houses under any traffic light phase (at least for the time being), we consider that the environment is such that there is no lawful basis for the Minister to make a CTO. Should government guidance change placing restrictions on moving homes, we will update our members.
For more information on the special tenancy termination rules for future lockdowns watch our video explainer here.