Keeping old records?

by Readers Question

10:50 AM, 1st May 2018
About 7 months ago

Keeping old records?

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Keeping old records?

Hi all, whilst getting myself organised regarding the new GDPR regulations, it’s got me thinking about all the information I still hold for previous tenants. Eg, old tenancy agreements, notices etc and I still have details on DPS for previous deposits I have lodged.

Does anyone have any ideas on how long we should be keeping records such as these, relating to previous tenants. I don’t want to start deleting things and then be told I should have kept it for 5, 7, 10 years!

Many thanks

Ashleigh



Comments

Neil Patterson

10:54 AM, 1st May 2018
About 7 months ago

Hi Ashleigh,

You should not keep records for any longer than they are still useful for the purpose that they were taken for. However, some records will be required to be kept for HMRC so it is worth checking with your accountant what you would need to produce in case of an audit.

Lawrence Squid

11:47 AM, 1st May 2018
About 7 months ago

Remember when the West Brom Mortgage Company illegally upped their rates and Mark thankfully beat them in the High Court, costing them £27 million?
Well, it became very useful at that time to have retained old paperwork from years previously. We shouldn't have needed to do that. But none of us expected the West Brom thieves to do what they did. I'm sure the old paperwork helped to prove that they were liars.
Hence I NEVER dispose of old previously important paperwork. You can never be sure when it might become useful again.
Archive it for peace of mind.

Mandy Thomson

12:17 PM, 1st May 2018
About 7 months ago

Neal is right. As I understand it, the records you're entitled to keep (the data) containing tenants (data subjects) personal information, is determined by the purpose (which are covered under six gateways; all six gateways are listed here).
For most small landlords, the main gateways will be contractual (that is the, tenancy agreement) and legal (for example, the legal requirement to carry out right to rent checks). A tenant's consent would only be required if their data was to be used for a purpose beyond the other five gateways (consent is a gateway), sent outside the EU (which includes being stored electronically on servers outside the EEA - check with your email, mobile and cloud storage providers), passed to a any other party that may not be GDPR compliant, or held for longer than necessary.
The length of time data can be stored is again determined by the gateway - that is, the reason it is being held.
For the contractual gateway, data relating to tenancy applicants should only be held until a tenant is chosen and the tenancy agreement is signed. Data relating to an ongoing tenancy is self explanatory, but data needs to be held after a tenancy until a deposit is settled, or arrears or damage resolved, which brings us to the legal gateway.
The legal gateway is right to rent, HMRC, and possibly litigation against a landlord for non protection of the deposit or any other matter a landlord may have reason to believe legal action could be taken.
For right to rent, data must be kept for a year after the tenancy ends. For HMRC, at least 8 years, and for litigation, six years from the event (for example, six years from payment of the deposit, not start of the tenancy).
To sum up, data can be SECURELY held without the subject's explicit consent provided the reason is covered by at least one gateway; only data related to that purpose is kept, and the data is not passed to a third party that is not specifically related to the purpose or a non GDPR compliant party without the subject's informed consent.

Robert Mellors

12:32 PM, 1st May 2018
About 7 months ago

Reply to the comment left by Mandy Thomson at 01/05/2018 - 12:17
Hi Mandy

I agree about the time limits for retaining data for the purposes you've mentioned, e.g. HMRC, litigation, etc, BUT it needs to be remembered that the DWP and LA's Housing Benefit Depts, can recover money paid to landlords indefinitely, so if the data you hold may be needed to defend or counter any Benefit recovery action, then it could be legitimate to hold the data indefinitely!
- This kind of goes against the whole ethos of GDPR, but until such time as the Government puts limitation periods on recovery of overpaid benefits, then there is certainly an argument that it may be legitimate for a landlord to continue holding personal data that may be needed to refute possible future HB overpayment claims (or DWP overpayment claims, if landlord gets Third Party Payments).

David Price

18:19 PM, 1st May 2018
About 7 months ago

Everyone has a point but I keep data to avoid inadvertently letting to a bad tenant for a second time. I need to keep this data indefinitely to protect my business as does every landlord. How does this sit with GDPR?

Mandy Thomson

21:12 PM, 1st May 2018
About 7 months ago

Reply to the comment left by David Price at 01/05/2018 - 18:19
David - I believe you would have a good argument that you are pursuing your "legitimate interests" which is one of the gateways, though I think you might need to demonstrate you'd evicted the tenant or the tenant was in serious breach of the previous agreement.

Mandy Thomson

21:13 PM, 1st May 2018
About 7 months ago

Reply to the comment left by Robert Mellors at 01/05/2018 - 12:32
Robert, again, I believe in the example you've given you could argue legitimate interests and possibly legal obligation.

David Price

8:05 AM, 2nd May 2018
About 7 months ago

Reply to the comment left by Mandy Thomson at 01/05/2018 - 21:12
What about the list of individuals which I would be happy to have as my tenants again? A surprisingly large number come back having experienced other landlords. Then there are the rare occasions where I am asked for a reference for a tenant who left ten years before, I had one such request this week.
I believe that HMRC have the power to go back 20 if they suspect fraud, how could I possibly defend myself without all my historical records?
Rhetorical questions for I do not believe that anyone has all the answers yet, points to ponder. My point is that without adequate and comprehensive records landlords cannot run their businesses properly.

Mandy Thomson

9:05 AM, 2nd May 2018
About 7 months ago

Reply to the comment left by David Price at 02/05/2018 - 08:05
This is how I understand it.

It's not about letting people evade justice or get out of paying debt, it's to stop people's data from being compromised and to stop spamming, junk mail and any other ads (especially online) they haven't actively consented to.

As long as you have a good reason to hold that data, i.e. it's to protect your own or another party's interest, you're legally obliged to keep it or it's necessary to carry out a contract or they've given their consent if none of those apply, and you follow the GDPR and protect that data, it's fine.

However, where right to rent is concerned, I can see why you would want to destroy copies of someone's passport or other records that relates only to that as soon as possible, as the potential exists for ID theft if that were to fall into the wrong hands.

Kate Mellor

12:15 PM, 2nd May 2018
About 7 months ago

I asked an RLA trainer this same question David as we do the same thing. I was told that the past tenant could legitimately claim that they had changed since their past tenancy was so long ago and that their current behaviour/credit history should speak for their current position; and that keeping old tenants records past 6 years couldn’t realistically be justified. Just a point from the position of the ‘devils advocate’.

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