Agent refuses to disclose reference documents under GDPR - despite suspected fraud

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    Agent refuses to disclose reference documents under GDPR - despite suspected fraud

    Hi there. I have a question about GDPR and the reference check documents carried out by a lettings agency at the start of a tenancy, and whether they should be made available to a landlord who commissioned them if the tenants owe money or are suspected of fraud.

    My mother began renting out her property in 2016 and used a property management agency to conduct the tenant reference checks. The tenants began defaulting on payments last year (nothing to do with coronavirus) and left on May 5 with two days notice, owing 3 months outstanding rent. (£4,500). They have left £1,700 deposit but this will probably just about cover damage, missing items etc, and not the outstanding rent.

    I started looking into the tenants and have discovered that they have run a company which has dissolved three times since 2012 - using the same company name each time when it started back up again, it was running from 2012-2016 under the man's name (but using just one part of a double-barrelled surname), from 2016-18 using the woman's name, and from 2018-2020 using the man's name but with a different barrell added to part of the name we know him under.
    The last company was registered at my mother's property (without her permission) but in a name different to the name used on the tenancy agreement.
    Effectively we are now aware of 3 names that the man has used.

    The couple have left and not given a forwarding address. It therefore seems futile to pursue this as a county court judgement at this stage as I have no address at which to enforce any judgement of debt made.

    The managing agent says she is aware of the wife's mother's address, as it is on the reference checks, but that she will not hand this over - because that would breach GDPR.
    I have phoned the Information Commissioner's Office and they have confirmed that they believe this is a correct interpretation of GDPR rules.
    However it seems ridiculous that the agency which carried out the checks on behalf of my mother will not share information that was obtained in order to protect her from losing out financially. She commissioned the agency to carry out the tenancy reference checks.
    Does anyone know if there are any loopholes that can be used to get around this, to obtain the documents provided during the reference checks?

    It has now made me wonder whether the managing agent should have recommended that the tenant was taken on in the first place.
    Apparently the tenants claimed they had been living abroad and therefore I imagine they perhaps didn't provide any proof of address regarding where they were living prior to moving into my mother's property.
    From what I know as a tenant, I would have thought that the couple should have been asked to provide a guarantor, in order to protect against them making off with a debt - as the lack of previous UK address should have been interpreted as a potential red flag.

    Does anyone have any advice as to whether the agency has breached due diligence in recommending that the tenancy should go ahead? And whether they should now provide the reference documents so that my mother can see on what basis they recommended the tenancy should proceed?
    Would they have had the right to share the reference forms with my mother at the point at which the tenancy was taken out, so that she could make her own judgement call as to whether the tenancy should go ahead?
    Or does a landlord have to trust the managing agents who carry out tenancy reference checks?

    The man has an unusual double-barreled name and I have found that he made a comment on a website recommending a firm which provides fake ID, in the form of fake bank statements, passports and driving licences. The website has a disclaimer which says that they are only provided for "novelty purposes". The man's links with this company, just a few weeks ago, make me wonder if the bank statements that he provided during the reference checks - which apparently showed that he was earning a high wage - were faked.

    In light of this suspicion of fraud, does anyone know if my mother is entitled or has any means of seeing the reference check documents completed by the property manager?

    As an aside, the wife put a note through the door after my mother put her house up for sale, asking if she would consider renting it out. In hindsight I do wonder if they follow a pattern of disappearing every few years (mirrored in their 3 companies which have all wound down potentially owing money), and for this reason they tried their luck with an individual rather than going through a traditional high street lettings agent where credit checks may have been more stringent.

    Any advice would be much appreciated. Thank you.

    #2
    Originally posted by EmmaJ2020 View Post
    The managing agent says she is aware of the wife's mother's address, as it is on the reference checks, but that she will not hand this over - because that would breach GDPR.
    I have phoned the Information Commissioner's Office and they have confirmed that they believe this is a correct interpretation of GDPR rules.
    However it seems ridiculous that the agency which carried out the checks on behalf of my mother will not share information......

    Does anyone know if there are any loopholes that can be used to get around this, to obtain the documents provided during the reference checks?
    You don't need any loophole.

    If you don't agree with the ICO then you can always take the agency to court to try and get the information released.
    They ICO themselves tell you this.

    I wouldn't expect the court to overule the ICO's interpretation in a simple case like this though.

    Comment


      #3
      What does mum's agreement with the agency say about sharing data please? If you don;t know, she should ask agent for a copy of the document signed or seen by her that they are relying on to withhold the data.
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        The ICO official was talking nonsense. The agent is your agent and they have no right to not-disclose information they obtain on your behalf as agent.

        But the broader lesson is NEVER to let an agent select a tenant using secret information to which only they have access. Get the info in detail (copies of every bit of documentation, copes of bank statements, etc) -- at the outset or the tenant is rejected. If agent refuses get another agent. If tenant refuses, definitely get another tenant.

        Comment


          #5
          There is a big difference between LL/agent and Data Controller/Data Processor.

          You can have one relationship without it being the other.

          The agent can be the Data Controller, and give their conclusions/advice based on that data to the LL, without disclosing the data itself to the LL.

          Most LLs using an agent would prefer not to be the Data Controller and have to deal with the data protection themselves - that's one reason why they are using an agent, to deal with that sort of stuff.

          As artful rightly says, that data relationship would all depend on the agreement/contract between LL and agency.

          Comment


            #6
            If the agent did not seek permission from the tenant to pass any and all data onto the landlord (such as their name) then they should not be in business.

            section 36(2) of the Data Protection Act 1998:

            Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—

            (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or

            (b) for the purpose of obtaining legal advice,

            or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.


            How the landlord in turn stores any data they receive is an entirely separate and irrelevant issue in terms of whether it should be passed on to the landlord and no direct business of the agent (though the landlord should also in any case be registered as a data controller).

            As lawcruncher has previously pointed out, the agent is not in fact disclosing anything to the landlord anyway if acting as agent for the landlord and the landlord could
            lawfully obtain it for herself anyway --- the agent is effectively the landlord and data passed to the agent is passed to the landlord.

            You could on the same token argue that the agent does not have to disclose whether the tenant has paid rent unless the tenant consents to such disclosure.

            Comment


              #7
              Originally posted by EmmaJ2020 View Post
              The couple have left and not given a forwarding address. It therefore seems futile to pursue this as a county court judgement at this stage as I have no address at which to enforce any judgement of debt made.
              You can take legal action using the last address you have for them, which is the rental property.
              They will probably not know about the claim (which you should win by default) until the ccj hits their credit history.

              Alternatively, give is few months and use a people tracking service (there's a directory on this site). Someone with an uncommon double barrelled name should be a piece of cake.

              The managing agent says she is aware of the wife's mother's address, as it is on the reference checks, but that she will not hand this over - because that would breach GDPR.
              I have phoned the Information Commissioner's Office and they have confirmed that they believe this is a correct interpretation of GDPR rules.
              However it seems ridiculous that the agency which carried out the checks on behalf of my mother will not share information that was obtained in order to protect her from losing out financially. She commissioned the agency to carry out the tenancy reference checks.
              Does anyone know if there are any loopholes that can be used to get around this, to obtain the documents provided during the reference checks?
              It would depend on what the data is and how it was acquired.
              Standard practice for a letting agent would be to collect all referencing data on the basis that it may be passed to the landlord.
              If your agent didn't/doesn't do that, you may have the basis for a complaint.

              However, the mother's address is not really directly related to the tenancy or the claim you want to make, it's just someone's address.


              It has now made me wonder whether the managing agent should have recommended that the tenant was taken on in the first place.
              Apparently the tenants claimed they had been living abroad and therefore I imagine they perhaps didn't provide any proof of address regarding where they were living prior to moving into my mother's property.
              That's a huge leap to make.
              The tenant take on was four years ago, and the tenant paid rent for about three years.
              There's only so much protection a credit check and potential tenant vetting can give.

              From what I know as a tenant, I would have thought that the couple should have been asked to provide a guarantor, in order to protect against them making off with a debt - as the lack of previous UK address should have been interpreted as a potential red flag.
              It's possible, but guarantors for tenants from abroad are difficult.
              And you would have to know precisely what the conversations were between the agent and your mother.
              It could have been discussed and the consequences of what was being discussed misunderstood.

              Does anyone have any advice as to whether the agency has breached due diligence in recommending that the tenancy should go ahead? And whether they should now provide the reference documents so that my mother can see on what basis they recommended the tenancy should proceed?
              Again, it's hard to tell after 4 years.
              The tenant may have had a 100% perfect credit rating and then had some kind of catastrophe that changed everything.
              My credit rating is good today, but what it might look like in 2024 is hard to predict.

              Whether they should share the forms is covered above. They probably should, but need to put in place a proper mechanism to allow them to do that.


              Would they have had the right to share the reference forms with my mother at the point at which the tenancy was taken out, so that she could make her own judgement call as to whether the tenancy should go ahead?
              Or does a landlord have to trust the managing agents who carry out tenancy reference checks?
              Again, it's hard to know.

              If the tenants were abroad a UK reference is almost impossible.
              But don't over-estimate the process - most letting agents complete a fairly basic set of forms and do an online credit rating, which comes back with no detail (usually something along the lines of yes, no, yes with guarantor).
              They probably wouldn't have looked at the company records at all.

              The man has an unusual double-barreled name and I have found that he made a comment on a website recommending a firm which provides fake ID, in the form of fake bank statements, passports and driving licences. The website has a disclaimer which says that they are only provided for "novelty purposes". The man's links with this company, just a few weeks ago, make me wonder if the bank statements that he provided during the reference checks - which apparently showed that he was earning a high wage - were faked.
              Could be, but again, you're talking about someone who paid rent fine for the first three years.

              Any credit check and referencing is probably only relevant for a few months. After that, things change.

              In light of this suspicion of fraud, does anyone know if my mother is entitled or has any means of seeing the reference check documents completed by the property manager?
              I don't see any evidence of any kind of fraud.
              Your mother let her property to a tenant four years ago and until last year, they were just normal tenants paying rent.
              And, because they fell into arrears and did a bunk, you have decided that they were dodgy from the outset.
              Nothing you have posted implies that.
              The rolling over of companies isn't a great sign of stability, but all the while they were doing that, they were paying rent and behaving normally.

              As an aside, the wife put a note through the door after my mother put her house up for sale, asking if she would consider renting it out. In hindsight I do wonder if they follow a pattern of disappearing every few years (mirrored in their 3 companies which have all wound down potentially owing money), and for this reason they tried their luck with an individual rather than going through a traditional high street lettings agent where credit checks may have been more stringent.
              That's obviously possible, but why is it more likely than they were perfectly normal people who saw a property in an area they wanted to live in, were perfectly happy trying to get their business(es) off the ground, ran into some hard times and were forced to leave their lovely home because they could no longer afford the rent?

              Some landlords would regard a four year tenancy with three months arrears and the keys handed back as a bit of a bullet dodged.
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #8
                I would have thought that in order to pass on the references to the landlord, the Agent would need to satisfy themselves that the landlord has a GDPR policy and has previously issued their Privacy Statement to the tenant and that they are registered with the ICO if they want it passed-on electronically.

                Comment


                  #9
                  Thank you so much for all your comments everyone, which I am trying to digest right now. That's all really so helpful.

                  I found out this morning that the tenant is listed on the government's insolvency register as having gone bankrupt in 2015, with a Bankruptcy Restriction Order which lasts until 2025.

                  The tenancy was given in 2016.

                  One of the names which was used for the tenancy is one of the three names the man is listed as being "known as" on the government website - this makes FOUR names now that I am aware by which he goes by.

                  His wife sent me an email last night admitting that he changed his name at some point since taking out the tenancy. We have not been informed which seems to breach the law around name changes, which states that if you do so you must make it clear that you are known by a new name.


                  Comment


                    #10
                    This is the section in the contract that was taken out with the agent regarding data protection, which theartfullodger asked to see....

                    Data Protection Act.
                    In order to comply with the provisions set out in the General Data Protection Regulations (GDPR), we will hold data provided as data controller. Details of how your data or that of the tenant will be taken, held and used is set out in our privacy policy, a copy of which is available upon request.
                    Data Protection Act: To prevent any unauthorised access to or use of personal data we have the responsibility to keep information confidential and will only use it if fees are not paid and we wish to refer the matter to a debt collector or solicitor; or if we are specifically required to do so by law or to pass it to a government agency by law; when instructing solicitors; to change account details for utility suppliers and the council tax into or out of your name; when a contractor’s invoice has not been settled by you.

                    Comment


                      #11
                      jpkeates makes some very valid points. If you have a tenant who has paid the rent on time for three years you are going to have an uphill struggle persuading a court that the agent made a bad choice of tenant, even if the references obtained were not entirely satisfactory - as opposed to completely unsatisfactory.

                      Comment


                        #12
                        Thanks so much for your comment. Would it make any difference regarding the agency recommendation, that the tenant has a bankruptcy order against him, listed on the government's individual insolvency register, which was not declared? It is a BRO (Bankruptcy Restriction Order), in place until 2025.

                        Comment


                          #13
                          If the tenant has a habit of changing their name, unless the bankruptcy shows up against the name they were credit checked against, it might have been missed.
                          It would be worth asking that question of the agent, that's a perfectly reasonable request - "how was the tenant's bankruptcy not found on their credit check"?
                          If they didn't check at all, or did check and it was reported to them, they have almost certainly been negligent.
                          If they did check and it didn't get reported, they've probably done all they could do.

                          People who are good at living outside their means for prolonged periods are going to routinely be able to outwit a letting agent however good the agent is.

                          I'm not sure what law you are referencing relating to name changes.
                          Your name is simply what you're known as, you can call yourself anything you like (with certain exceptions - you can't impersonate some professions).
                          If you need an official identity, you would have to change it formally, but it's not necessary.

                          If you are in touch with the tenant and know their various names, after six months, they should be relatively easy to find (by a professional - see the directory part of this site for adverts) and your mother can sue them for what they owe.
                          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                          Comment


                            #14
                            Thank you so much for your help jpkeates

                            Comment


                              #15
                              An agent tried this on me once. I told them that unless they sent me all the material they had, I would not be able to consider the tenant. They folded.

                              Comment

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