Most people are aware that the Personal Information Protection and Electronic Documents Act and Privacy Act (PIPEDA) governs the collection, use, and disclosure of personal information within their business dealings. But do you know it also applies to landlords, condo associations and boards, and property management companies and does not apply to tenants?
What information is protected under PIPEDA?
Lots! There is quite a bit of information that falls under PIPEDA, including;
- Date of birth
- Phone number
- Eye colour
- Social insurance number
- Driver’s license
- Email address
- Banking information
- Criminal history
- License plate number
- Capturing a tenant’s face on a security camera
- Surveillance cameras
- Taking pictures of a tenant’s apartment and contents if a breach is suspected
As a landlord, it is your responsibility to acquire the tenant’s consent before collecting data and have a reasonable purpose of collecting, using, and releasing personal information. You must also protect the data by preventing unauthorized access, loss, or destruction of that data. You can only use the information for the original purpose discussed, or you must ask for the tenant’s consent if using it for another reason. Lastly, it is your duty to know the PIPEDA rules to comply with them and safeguard information by locking filing cabinets, restricted office access, alarms, digital encryption, firewalls, and with the fortification of your organization’s security, controls.
Direct and Implied Consent
Consent for personal information can be gained by several means; directly from the individual, voluntarily from the tenant, or with “opt-out” notification.
Although consent can be given verbally, via electronic communication, or in writing, and it is good practice to have documentation as proof of consent.
Direct consent isn’t the only method, PIPEDA recognizes implied consent. A tenant is seen as giving implied consent is given when they have voluntarily provided information, or if they do not “opt-out” or provide notification within a reasonable time when they were given precise notification of the opt-out period.
Changing or Withdrawing Consent
Suppose you have an individual who chooses to withdraw or change their consent, they must notify you, and you must then tell them of the consequences of withdrawing. For example, it is your policy to run a credit report and check employment and landlord references as part of your application process. The tenant initially agrees, then withdraw consent. The consequences are that the applicant will not be considered for tenancy since it isn’t possible to collect enough information to make an informed decision.
What information can you collect from a tenant?
PIPEDA only allows you to collect the necessary information to decide whether to approve tenancy. This can involve requesting reasonable proof a tenant can pay the rent every month. Allowable documentation includes tax information or a pay stub. Additional permissible information may include personal information about references, government-issued identification such as a drivers’ license, and tenants’ insurance, identification of a roommate or “other occupant” not listed as a tenant living in your rental premises. In the case of subsidized housing, you can request detailed proof of income and expenses.
What information are you not allowed to collect or distribute?
Believe it or not, you are not allowed to ask for banking information, but you can ask for cheques, which include banking information. You cannot run informal background checks using social media and landlord references without the tenant’s consent, nor can you add a tenant’s name to an unregulated bad tenant list. “Shaming” of tenants by providing bad landlord references is also considered taboo, however, tenant behavior in some instances can be reported to credit burros. Exceptions to the rules are police agencies who can demand tenant information or enter a tenant’s unit in a case of emergency or with 24-hours notice with a warrant.
Do you need a SIN number to run a credit report?
Many people are hesitant about handing over their social insurance number because of the risk of identity theft. Although you can request it, it’s best to avoid it since credit reports can be completed with a full legal name and date of birth.
Posting personal information – what’s allowed?
According to PIPA, if you want to post the tenant’s information on a mailbox, building directory, or buzzer directory, you must have the tenant’s consent. The same holds for providing a tenant’s personal information to other tenants or a collection agency. However, you can use a tenant’s personal information to collect back rent.
At this point, you may wonder –what if you need to post a 24-hour notice, an eviction notice, or a 14- day notice on the tenant’s door. How are you supposed to ask permission for that?! PIPA requires you to deliver the mail personally as described by the Residential Tenancies Act (RTA), and after that, the RTA takes priority over PIPA.
Get rid of the evidence – legally
When it comes to keeping personal information, you should only keep it the shortest time possible. Then, figure out how you can guarantee its absolute destruction, or if it’s electronic, encrypt it while stored.
By the way, tenants can ask to receive a copy of their personal information, and you can release their information for a fee (by estimating the time it will take you to collect the information). They are not entitled to 100% of their information. If it is protected by legal privilege or if it would expose a complainant, you can provide the information and omit the complainant’s name or any information that could be used to construct the complainant’s identity. Tenants must first request access to their personal information in writing, give you 45 days to respond, and include what they want to use the information for and for whom the information will be given.
An integral part of processing a tenant’s application is obtaining enough personal information to make an informed decision about whether the tenant will be a qualified candidate for your property. Once you have the information, the onus is on you to legally use, store, or destroy. Familiarizing yourself with PIPEDA as it relates to landlords and tenants in Alberta prevents you and your tenants from risk exposure.
This summary is not intended as legal advice. For legal advice seek the advice of a lawyer.
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