When taking over the management of properties from other agents we often encounter one particular issue. Whether or not we are entitled to the tenant’s references and whether or not the previous agent is entitled to rely on the UK General Data Protection Regulations when refusing to release it.
Is a landlord entitled to a tenant’s reference?
Put simply, yes, a landlord is legally entitled to their tenant’s reference. It is in fact a common misunderstanding in the lettings industry that a landlord is not entitled to a tenant’s reference for GDPR reasons.
When agents act on behalf of landlords they do so under the law of agency. This means that when a landlord instructs an agent they are instructed entirely on the landlord’s behalf. By the very nature of the agent and landlord relationship, an agent is an extension of a landlord and acts on their behalf. Therefore when an agent secures a tenant they do so on behalf of the landlord and arrange for a tenancy agreement to be signed between the landlord and tenant. This of course means that there is in fact no contractual relationship between the agent and tenant.
Any agent acting on behalf of their client the landlord is required to do so in their best interest. Landlords are ordinarily not a party or aware of the exchange between agents and tenants however, they are entitled to their tenancy documents, including references on demand due the agents responsibility and duty to account.
Tenant references and data protection
Further with regards to the specific statement that references cannot be provided for GDPR reasons, this is wholly misconceived. Agents obtain references on behalf of their clients and they belong to those landlords. In fact when agents obtain these references they do so as data processors and it is the landlord that is the data controller for GDPR purposes. This means that agents are freed from many of the ordinary responsibilities for data protection that apply in this scenario.
Furthermore, having paid for the references a landlord is entitled to them not only to be confident about the person renting their property but also to ensure that the references have been obtained in the first instance.
Finally, an agent can pass over data for processing by the landlord if it falls within the legitimate interests processing basis under the GDPR. Clearly, it is a legitimate interest of the landlord to have a copy of the references belonging to the tenant because they will have an interest in the identity of the person occupying their property as well as their ability to meet the tenancy obligations.
In-house Legal Counsel