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Landlords, you may want to put down your phones: under BC’s privacy legislation, you cannot Google a prospective tenant or look through their social media without their consent. You may not even be allowed to ask for their consent to do so.
Following on its announcement last summer, the Office of the Information and Privacy Commissioner has released an investigation report and guidelines about what personal information a landlord may collect during the tenancy application process. The OIPC describes examples of information that landlords may always, sometimes, and (almost) never collect, and some of the prohibited information may surprise tenants and landlords alike.
For example, although “Googling” a prospective tenant is commonplace (these days, many people Google everyone) the OIPC now says that all internet searches, including social media searches, are prohibited under the Personal Information Protection Act.
It may also come as news to landlords that they can only request a prospective tenant’s credit history or score if the applicant is unable to provide satisfactory references or employment and income verification. Landlords cannot request this information as a matter of course, and cannot request an applicant’s credit card number.
As examples of practices in the “always authorized” category, landlords can confirm an applicant’s name and proof of identity by viewing – but not copying or otherwise recording – government-issued ID; contact information; references; and whether the applicant has ever been evicted.
There are other types of information that landlords can only “sometimes” collect. For example, if the information already available is insufficient to establish an applicant’s history of rent payment, a landlord may request proof of income or employment.
Landlords can “(almost) never” collect information that the OIPC describes as too unrelated to determining suitability, or too sensitive to be reasonable for a landlord to collect. Examples include an applicant’s driver’s licence number or banking information, or asking whether any intended occupant smokes.
Relatedly, landlords cannot obtain blanket consent from applicants to collect whatever information they want or to view an applicant’s personal information on sources such as social media or the internet. The OIPC cautions landlords that if they choose to use a standard application form, they can only ask for the information that is “always authorized” and no more.
The OIPC has also set out rules about information that landlords must provide to applicants, such as the specific purpose for which the landlord is requesting personal information, and whether a request for a credit report could lower the applicant’s credit score.
BC’s privacy legislation places strict limits on the information landlords can collect from prospective tenants, including prohibiting screening practices that are commonly used by landlords. Moreover, the information landlords may collect differs as between tenants and prospective tenants. Landlords are cautioned to carefully consider their application processes to ensure they remain onside of their obligations under privacy and human rights legislation.
For more information, please contact:
Our Commercial Real Estate Group has experience in all aspects of the law and practice related to commercial property acquisitions, management, structuring, development and sales.
Articles | Dec 23, 2021
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