Tenant Privacy On Regulator Radar

Contributed By: Nick Buick on

Never before has technology taken such an invasive knife to our privacy. It’s a well known fact that our smart phones and appliances track our every move, search, and even our conversations and share this information with “private” corporations like Google, Amazon, Facebook and Apple. The ATO will now demand granular data on all trading information and use advanced data-matching to identify anomalies and trigger audits. Banks and financiers these days pick through bank statements with a fine-tooth comb and if they feel an applicant takes too many overseas holidays, or spends too much on cosmetic surgery, may decline to offer them finance. We have seen, first-hand, how dangerous data matching can be in real estate, where unit numbers are scraped off our listings, matched to government title documents that are sold to private entities by the Office of Natural Resources, and then harvested into call-sheets and sold to competitor agents seeking to raid a manager’s complex and acquire his letting pool (read more about it here: https://theonsitemanager.com.au/news/advertising-unit-numbers-exposes-your-mr-to-unnecessary-risks/ )

Consumer privacy rates a very low concern after profit for these conglomerates who take an approach of “You agreed to our terms-of-use, you can deal with it”. At the same time, regulators and government bodies are scrambling to “protect” consumer privacy, but it seems always the case regulations do more harm than good. Rather than stemming the flow of private data, regulations seem to achieve little more than create inconvenience for users – we all see the idiotic: ‘This website uses cookies, do you accept?’ messages that we’re now bombarded with on most websites. You can thank the self-licking ice creams of The EU and The General Data Protection Regulation for this shining example of incompetence, which of course does absolutely nothing to actually secure consumer privacy (and they wonder why BREXIT is a thing).

Increased government regulation into consumer privacy may not be doing anything to protect us from the prying eyes of corporate America, but it is certainly illustrating the impact technology is having on privacy. One thing that is certain: sooner or later (and it would appear to be sooner) it’s going to have a profound impact on rental applications in Australia and the amount of data we’re allowed to collect and store in their processing. New Zealand’s Office of the Privacy Commissioner (OPC) has forged ahead in this field and gives us a rather bleak insight into what may lie ahead for Australian property managers.

The Privacy Act guidelines in NZ set out specifically what a property manager can, and cannot ask someone in processing a tenancy application. ( read it here: https://www.privacy.org.nz/assets/Uploads/2019-08-07-Privacy-Act-guidance-for-landlords-and-tenants-A649457.pdf ). Information you would be prohibited from gaining about a tenant in NZ includes:

  • Citizenship status,
  • Illness (both physical and mental),
  • Opinions or Religion
  • Marital Status
  • Gender
  • Past Rent (I know right?!)
  • Expenses
  • Proof of insurance
  • Employment History
  • Consent to collect information from other sources (yes, seriously).

Further to this, a landlord or manager can’t even check criminal background, credit/blacklist report, vehicle information and date of birth (!) until AFTER the tenant has been selected as the preferred candidate. Of course these regulations are unworkable and would result in significant problems if implemented in Australia but that is the direction regulators and taking us.

Rising house prices have of course meant more tenants and more lifetime tenants as generations of residents are being locked out of the housing market. The push to reform the tenancy system to support these long-term tenants is becoming apparent in the way legislators approach regulation. In Australia we’ve already seen recent dramatic shifts in regulation, lurching protections away from landlords skewing them toward the interests of the tenant. With tenants making up a larger voting block than landlords, it’s easy to see why this is so appealing for governments across the country.

In The People’s Republic of Victoria in 2017 the Andrews government introduced a raft of new legislation which included banning landlords from accepting offers higher than advertised rent, and forbidding landlords from issuing a notice to vacate at the conclusion of a lease. Non-payment of rent is no longer acceptable grounds to terminate a lease agreement without six weeks of warnings (yes… seriously!). Victorian tenants are legally allowed to keep any pets they wish in their property including in apartments (see our article here: https://theonsitemanager.com.au/news/new-laws-tenants-pets/ )

Likewise in Queensland, QCAT has overturned body corporate restrictions on pets in buildings (see here: https://theonsitemanager.com.au/news/the-golden-rules-of-by-law-enforcement/ )  and the government has greatly scaled-back the notice requirements for tenants ending a tenancy down to just 2 weeks while increasing the notice to leave requirements for landlords out to two months (without grounds)!

In Australia, the Office Of the Australian Information Commissioner (OAIC) is now taking a very close look at tenancy applications and the information allowed to be collected, particularly in light of the NZ guidelines. While they haven’t set anything into stone at this point, they are speaking to industry bodies such as the REIQ and application processers such as 1Form and advising them that the amount of tenant data being collected and stored about prospective tenants, currently, is unacceptable and needs to be scaled back substantially. 1Form have already began developing their system to support increased data privacy, with a view to step up 2-Factor authentication and siloed staff logins within single agencies. The number of datapoints to be collected is also to be reduced.

The trajectory of legislation and regulations, across-the-board, appears to be shifting the balance of power significantly toward the tenant with little regard for the interests of the owner. The next few years will likely see considerable changes as regulators scramble to further secure the rights, and privacy of tenants. It is the hope of most of us working in property management, that this isn’t done at the expense of a usable tenancy framework.

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