What was Tenancy Tribunal case 4689409 about?

The tribunal order states: The tenants’ names and identifying details, including the tenancy

How much money was awarded in case 4689409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4689409?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4689409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770006-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4689409 about?

The tribunal order states: The tenants’ names and identifying details, including the tenancy

How much money was awarded in case 4689409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4689409?

The primary dispute was State of repair. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4689409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770006-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4689409 — State of repair

Order

The tenants’ names and identifying details, including the tenancy address, must not be published.
The Tribunal declares: a. Haven Living Management Limited as agent for the owner may take photographs of the premises during its routine property inspections for the purposes of recording the premises’ state of repair, tidiness, and cleanliness. b. In taking photographs, Haven Management Limited must take no more photographs than are necessary and must take reasonable steps to avoid capturing images of the tenants’ personal belongings or information about the tenants that are not necessary for the purposes mentioned. c. The photographs may be disclosed to the owner’s insurer if the insurer requests them for good reason. d. In taking photographs, storing them, disclosing them, or otherwise dealing with them, Haven Living Management as agent for the owner must comply with the Information Privacy Principles set out in s 22 of the Privacy Act 2020.

Reasons

Mr “K” (as I will refer to him, his name being suppressed) attended the hearing for the tenants. 1
Mr Daji attended the hearing for Haven Living Management Limited (“Haven”).
Mr Daji seeks a declaration that he may lawfully take photographs when he does routine inspections. Background
Haven manages the premises for the owner. Haven conducts quarterly routine inspections of the premises. 2
The tenants are refusing Haven permission to take photographs during the inspections. They consider that taking photographs is an unwarranted interference with their privacy. They don’t have anything to hide but are uncomfortable that their living conditions are recorded in photographs that are kept on Haven’s file.
Mr Daji’s immediate concern is that the owner’s insurer requires the owner or her agent to conduct inspections every three months and keep photographs recording the inspection. The insurer requires the owner to provide a copy of the photographs if it requests.
Mr Daji says when he takes photographs, he ensures the tenants have plenty of warning so that can stow away personal belongings and he is at pains to only photograph what he needs to record that the premises are being well looked after. Typically that involves taking four mid-distance photographs of each room, towards each of the room’s four walls.
Mr K says that he and his wife carefully look after the premises. He does not see that there is any need for the property manager to take photographs. It is an unwarranted intrusion into his personal life, an invasion of his privacy, and a breach of his autonomy and dignity.
Mr K accepts the property manager should be permitted to take photographs of any defects that arise in the premises. So, if there is a new crack in a wall for example, the property manager could take photographs of that. But the property manager should not be allowed take general photographs which merely confirm that the premises remain in good, clean condition. The property manager could simply write a note to that effect. 1 This is a reserved decision. I heard the matter on 1 December 2023. 2 As permitted under s 48(2)(b) of the Residential Tenancies Act 1986 (RTA).
The issues are: a. May the Tribunal issue a declaration as requested? b. Is taking photographs during inspections for insurance purposes an interference with the tenants’ privacy in breach of s 38 of the

Residential Tenancies Act 1986?

May the Tribunal issue a declaration as requested?

Section 77 of the Residential Tenancies Act 1986 (RTA) provides: 77 Jurisdiction of Tribunal (1) The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
Under s 77(2)(m) of the RTA the Tribunal has jurisdiction to: (m) to order the landlord or the tenant under any tenancy agreement to which this Act applies to refrain from doing anything if the doing of that thing by that party would constitute a contravention or (as the case may require) a further contravention of any express or implied provision of the tenancy agreement or any provision of this Act:
Under s 78(1)(a) the Tribunal may make: (a) an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise...
In this case, there is a dispute between a landlord and a tenant which relates to a tenancy to which the RTA applies: RTA, s 77(1). The Tribunal can order the tenants to refrain from refusing consent to Haven taking photographs of the premises during routine inspections: RTA, ss 77(2)(m). The Tribunal can make a declaration as to the rights or obligations of the parties: RTA, s 78(1)(a).
Therefore, the Tribunal can make an order in the nature that Haven seeks. Is taking photographs an interference with the tenants’ privacy? Legal principles
Under s 38(2) of the RTA landlord must not interfere with “the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant”.
The words “reasonable privacy” will naturally include privacy in respect to the tenant’s personal information. That brings the Privacy Act 2020 into play. A principal purpose of that Act is to “promote and protect individual privacy by”: 3 providing a framework for protecting an individual’s right to privacy of personal information... (Emphasis added)
Determining whether there has been an interference a tenant’s reasonable privacy under s 38 involving personal information may often be assisted by considering whether there is “an interference with the privacy of an individual” under s 69 of the Privacy Act. 4
Under the Privacy Act, personal information is “information about an identifiable individual”. 7 A photograph of a person’s premises at the time the person is living there is information about that person. It is not necessary that the photograph itself identifies the person because the tenant is identifiable by their known connection to the premises. The property manager and the landlord know the tenant is living at the premises and the photographs are typically held on a file under the tenant’s name.
I briefly discuss the information privacy principles as they might typically apply to taking photographs of residential tenancies premises.
Section 22 of the Privacy Act 2020 contains 13 Information Privacy Principles (IPP) that are the core of the Privacy Act. 5 The IPP set out how agencies such as property managers should collect, use, disclose, store, keep accurate, and retain personal information such as photographs taken during property inspections. The IPP also set out that people such as tenants can ask to see their personal information and ask for correction if the information is wrong.
To paraphrase the application of some of the relevant principles, landlords should in respect to routine inspection photographs: 6 a. Only take photographs they really need. b. Tell the tenants that they will take photographs and why. c. Be fair and reasonably in how the photographs are taken. d. Store the photographs securely and protect them against misuse. e. Give tenants access to their photographs when they ask. f.Only keep the photographs for as long as the landlord needs them. 3 Privacy Act 2020, s 3. 4 See [Suppressed] v Simon Todd [2022] NZTT 4319171 for another example of the interplay between s 38 and the Privacy Act. 5 Katrine Evans Focusing on Solutions: working with the Office of the Privacy Commissioner NZLS CLE Seminar (2011). 6 Ibid p 28. g. Use the photographs only for the purpose they were taken or have another good reason for disclosing the photographs. Discussion
Given that the Privacy Act principles will inform the Tribunal’s task of deciding personal information issues under s 38, it is useful to consider the Privacy Commissioner’s guidance on the issue. His Office’s advice is that landlords may take photographs during inspections.
The Privacy Commissioner is the expert on the topic of personal information. The Privacy Commissioner’s findings and pronouncements are not binding on the Tribunal, but they are highly persuasive given his specialist knowledge and status within the New Zealand legal framework.
The landlord helpfully provided copies of Office of the Privacy Commissioner’s advice for landlords and tenants about this issue from the Office’s website, including that: When carrying out a flat inspection, you should collect no more information about the tenants than is necessary to assess how well they are caring for the property. When taking photos, you shouldn’t include people in the shots or focus on the occupants personal items unless those items contravene the tenancy agreement.
And also:

Can a landlord or property manager take photos during inspection?

Yes, they can. Landlords and property managers have a lawful purpose to collect information about a rental property when they carry out a property inspection. The Privacy Act says an agency should only collect information for a lawful purpose and the collection of that information has to be necessary for that purpose. Taking photos is a useful way of documenting the state of a property in case a matter is disputed at a later date and it is common for photos to be used as part of the inspection report. Where the property or the tenant is identifiable from the photos, landlords should be clear with the tenant about when the information can be collected and why (information privacy principle three). They should include this in the tenancy agreement and communicate this to the tenant right from the beginning. They also need to take care to store the images securely and only share the images for a purpose connected to the property inspection.

Mr Daji did not provide the Tribunal with a copy of the landlord’s insurance policy. However, a sample policy wording of a major New Zealand insurer available on the internet stipulates that the landlord’s obligations include three- monthly inspections, taking photographs during the inspections, and making the photographs available on request: Landlord obligations a. You, or your agent, must: ... vi. complete an internal and external inspection of the rental house at a minimum of 3 monthly intervals and upon every change of tenants, and vii. keep photographs and a written record of the outcome of each inspection, and provide to us a copy of these if we request it...
The wording is unexceptional. I accept Mr Daji’s evidence that the landlord’s policy contains similar wording to this.
Routine inspections ensure that the tenant is keeping the premises reasonably clean, the tenant has not damaged the premises and is not breaching their other duties, and the premises are in a reasonable state of repair.
I consider the landlord taking photographs of the premises during routine inspections because their insurer requires it is a proper purpose. It follows, taking photographs for that purpose would not typically be an interference with the tenant’s right to reasonable privacy in their use of the premises under s 38 of the Residential Tenancies Act 1986
Providing the photographs to a landlord will generally be an appropriate disclosure because it will prove to the landlord that an inspection has been done and that the property manager’s assessments are correct. Similarly, providing the photographs to the landlords insurer upon a proper request being made (such as when the landlord makes a claim) would also be an appropriate disclosure.
Photographs are often the “best evidence” if disputes arises to prove the condition of the premises at a particular point in time. It is understandable, for example, that if a landlord claims on their insurance policy, the insurance company will want to see the property inspection documents because they will not pay out on fair wear or tear or pre-existing damage.
I appreciate that taking general photographs simply that show there is nothing “wrong” may feel to the tenant like an unnecessary intrusion upon the tenant’s autonomy and privacy. However, in this context, taking general photographs that prove the absence of problems, is a proper purpose. Conclusion
I conclude that Mr Daji’s judicious taking of photographs during routine inspections will not be an interference with the tenants’ reasonable privacy in breach of s 38 of the RTA.
It is appropriate to make a declaration in the terms above. Non-publication order
Under s 95A(4) of the RTA, The Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that the name of a party not be published.
The tenants are concerned about their privacy. It would be galling if their attempts to preserve their privacy had the opposite effect. There is no public interest need for the tenants’ names to be published.
It is appropriate to order non-publication of the tenants’ names and identifying details, including the premises address.

Tenancy Tribunal case 4689409 — State of repair

At a glance

Tenancy Tribunal case 4689409 — State of repair

At a glance

Claims & awards

Order

Reasons

Residential Tenancies Act 1986?

May the Tribunal issue a declaration as requested?

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Residential Tenancies Act 1986?

May the Tribunal issue a declaration as requested?

Can a landlord or property manager take photos during inspection?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions