What was the outcome of Tenancy Tribunal case 5048836?

The tribunal order states: The Tribunal declares:

How much money was awarded in case 5048836?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5048836?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness.

Where can I read the official tribunal order for case 5048836?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11337612-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5048836?

The tribunal order states: The Tribunal declares:

How much money was awarded in case 5048836?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5048836?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness.

Where can I read the official tribunal order for case 5048836?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11337612-Tribunal_Order.pdf.

3 Main Road, Tuatapere, Tuatapere 9620 Tenancy Tribunal Case 5048836 — 14-day notice

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Order

The Tribunal declares: a. Bayleys Property Southland 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, Bayleys Property Management Southland as agent for Karen Maltseva 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, Bayleys Property Management Southland as agent for Karen Maltseva must comply with the Information Privacy Principles set out in s 22 of the Privacy Act 2020.

Tess Mary Thurlow must permit the landlord or its agents to inspect the premises and take photographs as declared above in accordance with the tenant’s duties under s 48(2)(b) of the Residential Tenancies Act 1986.

This matter is determined as above, but the landlord has leave to request that the application be brought back before the Tribunal before 21 July 2025 with new evidence of the tenant refusing to permit inspection or inspection photographs and the matter will be re-opened for further consideration.

Reasons

The hearing was conducted remotely on Microsoft Teams.

Catherine Wilson of Bayleys Property Management Southland attended for the landlord by video link.

The tenant attended by telephone.

The landlord applies for termination for the landlord breaching her obligation to permit the landlord access to inspect the premises and take photographs. 1 Background

The tenant has been consistently refusing permission to Bayleys to conduct inspections and take photographs.

The tenant accepts she has refused Ms Wilson permission because she claims that Ms Wilson interfered with her privacy by taking photographs of her children. Ms Wilson firmly denies that allegation.

Whatever the rights and wrongs, Ms Thurlow’s attitude is that she will no longer deal with Ms Wilson and will not permit her onto the premises.

She says she would permit another person to inspect the premises and take photographs. Discussion

I am reluctant to terminate this tenancy if the problem is an isolated one of Ms Thurlow refusing access only if it is Ms Wilson who would be doing the inspections. 1 Under s 56(1) of the Residential Tenancies Act 1986 (RTA).

This is not a case that the breaches are of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy. I therefore decline to terminate the tenancy.

It is not clear to me that Ms Wilson did anything unprofessional. However, pragmatically, it would make sense for someone other than her to do the inspections. Ms Wilson explained that Tuatapere is a remote town and Bayleys does not have an available alternative to Ms Wilson taking the photographs. Nonetheless, I hope that some alternative is found.

If Ms Thurlow cannot constructively permit another person to inspect the premises and take photographs, the file can be reopened and the landlord’s application for termination can be reconsidered afresh.

I will make a declaration about Bayley’s rights to inspect and take photographs and an order that Ms Thurlow meet her obligations under s 48 of the Residential Tenancies Act 1986 (RTA).

Before leaving this matter, I will set out some of the legal principles, so the parties understand the legal framework. 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”: 2 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. 3 2 Privacy Act 2020, s 3. 3 See [Suppressed] v Simon Todd [2022] NZTT 4319171 for another example of the interplay between s 38 and the Privacy Act.

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. 4 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: 5 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. 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. 4 Katrine Evans Focusing on Solutions: working with the Office of the Privacy Commissioner NZLS CLE Seminar (2011). 5 Ibid p 28.

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 Office of the Privacy Commissioner’s advice for landlords and tenants about this issue from the Office’s website, includes the following: 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.

Major New Zealand insurers typically stipulate that the landlord’s obligations include three-monthly inspections, taking photographs during the inspections, and making the photographs available on request. In this case, the landlord’s insurance police includes the followind : 6 Your obligations as a landlord You, or the person who manages the tenancy on your behalf, must do all the following: •Take reasonable care when selecting your tenants by at least getting adequate identification... •Inspect your rental home inside and outside at least every 3 months and between each tenancy. 6 State Insurance Policy Wording document. •Keep photographs and a written record of the outcome of each inspection and give us copies if we ask

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

Judicious taking of photographs during routine inspections will not be an interference with the tenant’s reasonable privacy in breach of s 38 of the RTA.

It is appropriate to make a declaration in the terms above. Tenant’s obligation to permit inspections

For the tenant’s benefit, I also set out s 48(2)(b) of the RTA: 48 Landlord’s right of entry (1) The landlord shall not enter the premises during the currency of the tenancy agreement, except— (a) with the consent of the tenant freely given at, or immediately before, the time of entry; or (b) in any of the circumstances described in subsections (2) to (3). (2) The landlord may enter the premises— (a) in any case of emergency; or (b) for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; or

The tenant must comply with s 48. Conclusion

I hope these directions ensure the inspections and photographing proceeds as required.

If not, the landlord may apply to reopen the matter prior to 21 July 2025.