Absconded Tenant Data Protection – I have a tenant that has absconded owing a considerable amount of money in rent arrears. I intend to trace the tenant and pursue the debt through the courts. But my letting agent is refusing to release the information I need, which is included on the tenancy application form and the credit check, on the grounds that it will breach the Data Protection Act. What should I do?
This goes right to the heart of the landlord / agent relationship and questions like this are very common when it comes to landlords requesting help from their agents. Using the Data Protection Act as a means of withholding information is now commonplace in all walks of life in the UK.
Landlords and agents should bear in mind how the law of agency works: the landlord as principal instructs his agent to act on his behalf in certain specified matters, usually agreed in writing, but sometimes just orally, evidenced by the conduct of the parties.
The agent can act on the landlord’s behalf; to bind the landlord in legal contacts with third parties (tenants, credit agencies, and trades people) as would be expected in the normal course of letting.
This becomes a tri-partite arrangement, with contracts between landlord and agent and landlord and tenant, plus a quasi landlord relationship between agent and tenant.
The agent therefore acts for the principal and any information obtained in that regard is rightfully open to scrutiny by the principal. If the agent proves negligent in the way he carries out his duties, and that could included any losses sustained by the principal through lack of cooperation, then the agent could be open to a claim for breach of contract and/or professional negligence. Absconded Tenant Data Protection.
Landlords can protect themselves to some extent by appointing agents who are members of a professional association, bound by a strict code of conduct. The Code of Practice for Letting Agents produced by the National Association of Estate Agents (NAEA) / Ombudsman for Estate Agents (OEM) is a case in point – http://www.oea.co.uk/downloads/codeofpractice_lettings.pdf
Tenancy Application Forms used by agents should include a statement, agreed in writing by the tenant, that relevant information will be shared by interested parties (which would include the landlord) providing this is handled confidentially and in line with Data Protection Act principles.
In addition to the principal’s contractual rights, s.35 of the DPA1998 states that personal data is exempt from the non-disclosure provisions where the disclosure is necessary for obtaining legal advice or for legal proceedings (including prospective legal proceedings).
©LandlordZONE All Rights Reserved – never rely totally on these standard answers which apply primarily to England and Wales. Before taking action or not, always do your own research and/or seek professional advice with the full facts of the case and all documents to hand.