When a property is put on the rental market, the landlord will likely, given the current shortage, receive an abundant number of applications. These applications
contain personal information the collection, storage and disposal of which are subject to both s123A of the Residential Tenancies Act (RTA) and the
Privacy Act (PA).
The relevant provision of s123A has recently been amended from requiring landlords to retain
any notices or letters, emails, or other forms of correspondence between the landlord (or a person acting on the landlord’s behalf) and the tenant (or a person acting on the tenant’s behalf) in relation to the tenancy (or copies)
any notices or correspondence between a landlord (or a person acting on the landlord’s behalf) and—
(i) a tenant (or a person acting on the tenant’s behalf) in relation to the tenancy:
(ii) a prospective tenant (or a person acting on the prospective tenant’s behalf) in relation to the tenancy.
during and until 12 months after the termination of the tenancy.
The additional aspect of retaining documents between the landlord and the prospective tenant has led many to assume that it encompasses all documented
communications with anyone who comes to view/applies for/ inquiries about the tenancy. The Office of the Privacy Commissioner has confirmed that it
is not the case.
On the face of it, s123A sits rather uncomfortably with principle 9 of the PA: agency (i.e. landlords) does not keep personal information for longer than necessary. But a closer examination of who is a prospective tenant
provides much-needed clarity. The RTA defines a prospective tenant as a person to whom any other person has offered to grant a tenancy, or with whom any other person has entered into negotiations for the granting of a tenancy to that person.
The Ministry of Housing and Urban Development’s guidance says that ‘A prospective tenant does not mean every person who comes to view the property. A prospective tenant means someone who the landlord has offered the tenancy or who has entered into negotiations with the landlord for the tenancy.’
This means any personal information belonging to applicants to whom you’ve not offered the tenancy (either with or without further negotiation) should
be properly disposed of the moment they’ve been ruled out.
Proper handling of personal information is an important aspect of landlording, we encourage all members to learn more by watching this presentation featuring the Privacy Commissioner, John Edwards.