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tenancy

Discrimination in renting: What landlords cannot ask

Key Takeaway

New Zealand landlords are restricted by law from asking for certain information from prospective tenants. They can only collect information relevant to a tenant's suitability and must not ask for or retain information related to prohibited grounds of discrimination, such as race, age, or family status, or the source of income if it relates to such grounds.

Discrimination in Renting: What Landlords Cannot Ask

New Zealand law places restrictions on the type of information landlords can request from prospective tenants when they are applying for a residential tenancy. These restrictions aim to prevent discrimination and ensure fairness in the tenancy application process. The primary legislation governing this area includes the Residential Tenancies Act 1986 and the Human Rights Act 1993.

The Legal Framework for Non-Discrimination

The Residential Tenancies Act 1986 (RTA) is the main legislation governing the rights and responsibilities of landlords and tenants in New Zealand. It includes specific provisions about the collection of information from prospective tenants [Source: Residential Tenancies Act 1986, s 2A to s 2D].

The Human Rights Act 1993 (HRA) prohibits discrimination on specific grounds across various areas, including housing and accommodation [Source: Human Rights Act 1993, s 21(1), s 53]. When the RTA refers to "prohibited grounds of discrimination", it is referring to these grounds as defined in the HRA.

Prohibited Grounds of Discrimination

The Human Rights Act 1993 lists the following as prohibited grounds of discrimination [Source: Human Rights Act 1993, s 21(1)]:

  • Sex: includes pregnancy and childbirth.
  • Marital status: includes being single, married, in a civil union, de facto, divorced, separated, or widowed.
  • Religious belief: includes absence of religious belief.
  • Ethical belief: includes absence of ethical belief.
  • Colour: refers to a person's skin colour.
  • Race: includes nationality or ethnic or national origins.
  • Ethnic or national origins: refers to the national group a person belongs to or comes from.
  • Disability: includes physical, psychiatric, or intellectual disability or impairment.
  • Age: discrimination based on age is generally prohibited, with some exceptions for employment and insurance.
  • Political opinion: includes absence of political opinion.
  • Employment status: includes being unemployed, or receiving a benefit or ACC payment.
  • Family status: includes having or not having children, or being a relative of a particular person.
  • Sexual orientation: includes heterosexual, homosexual, lesbian, or bisexual orientation.

Information Landlords May Collect

Landlords and their agents are permitted to collect and retain certain information from prospective tenants, provided that information is relevant for assessing the prospective tenant's suitability as a tenant [Source: Residential Tenancies Act 1986, s 2B(1)].

Information that may be considered relevant for assessing suitability includes [Source: Residential Tenancies Act 1986, s 2B(2)]:

  • The prospective tenant's ability to pay the rent.
  • The prospective tenant's ability to look after the premises.
  • The prospective tenant's likelihood of meeting their obligations as a tenant under the tenancy agreement and the Residential Tenancies Act 1986.
  • The likelihood of the prospective tenant behaving in a way that would not disrupt neighbours or other tenants.

Landlords must only request the minimum amount of information necessary to assess a tenant's suitability [Source: Residential Tenancies Act 1986, s 2B(3)].

Information Landlords Must NOT Collect or Retain

The Residential Tenancies Act 1986 explicitly prohibits landlords and their agents from collecting or retaining certain types of information from prospective tenants. This prohibition applies to information that relates to a prohibited ground of discrimination or the source of a prospective tenant's income if that source relates to a prohibited ground [Source: Residential Tenancies Act 1986, s 2C(1)].

Specifically, landlords cannot collect or retain information that [Source: Residential Tenancies Act 1986, s 2C(1)]:

  • Relates to a prohibited ground of discrimination: This means landlords cannot ask for information about a person's race, age, sex, disability, family status, or any other ground listed in the Human Rights Act 1993, unless an exception applies under that Act [Source: Residential Tenancies Act 1986, s 2C(1)(a)].
  • Relates to the source of the prospective tenant's income, if that source relates to a prohibited ground of discrimination: While landlords can inquire about a tenant's ability to pay rent, they cannot, for example, ask if a tenant receives a benefit or ACC payment if this information is used to discriminate on the basis of employment status [Source: Residential Tenancies Act 1986, s 2C(1)(b)].

Landlords also cannot require a prospective tenant to provide information about how they have resolved a tenancy dispute with a previous landlord or to indicate if they have previously had a complaint made against them to the Tenancy Tribunal [Source: Residential Tenancies Act 1986, s 2C(2)].

Examples of Prohibited Requests

Based on these provisions, landlords should not ask questions such as:

  • "Are you pregnant or do you plan to have children soon?" (relates to sex and family status).
  • "What is your specific medical condition or disability?" (relates to disability).
  • "What nationality are you, or where are your parents from?" (relates to race, ethnic or national origins).
  • "Are you currently receiving a benefit or ACC payments?" (relates to employment status, if asked with a discriminatory intent).

If a landlord collects prohibited information, or information not directly related to suitability, they may be in breach of their obligations under the Residential Tenancies Act 1986 [Source: Residential Tenancies Act 1986, s 2D].

When to Seek Independent Legal Advice

If a person believes they have been asked for prohibited information, or discriminated against during a tenancy application process, they may wish to seek independent legal advice. The Tenancy Tribunal resolves disputes between landlords and tenants. The Human Rights Commission also provides information and resolves complaints about discrimination. Free advice may be available from Community Law Centres.

Key Resources