When looking for a new apartment, prospective tenants are often required to provide a tenant self-disclosure form. Landlords ask for detailed personal data and sometimes additionally request proof of income and other documents. But is this actually permitted? What may a tenant self-disclosure form contain, and what may it not contain? Do the rules differ depending on when the data is requested? Prospective tenants and landlords can find answers to these and other questions in this guide.
The principle of data minimization applies
Landlords should generally act cautiously. This is because the principle of data minimization applies. In particular, since the adoption of the General Data Protection Regulation (GDPR), collecting data is permissible only in justified exceptions. This also applies to a tenant self-disclosure form. The more personal the data, the more this principle applies. Failure to comply may result in substantial fines.
Important: The GDPR also applies to private landlords! Data protection makes no distinction as to who collects the data.
Request only the data that is necessary
The legal situation is therefore clear: During the application process and in a tenant self-disclosure form, landlords may request only the data that is absolutely necessary for the respective rental step. This is governed by Art. 6 para. 2 GDPR. Accordingly, data processing must be purpose-limited and there must be a legitimate interest. For this reason, not only the scope of the data request is limited, but also the timing. At all stages, the apartment seekers’ right to informational self-determination must be appropriately taken into account.
Landlords should also observe the retention periods for personal data. The GDPR regulates the details for the respective data sets. In addition, private landlords should also prepare a privacy policy. This should state, among other things, the purpose and duration of the data request and/or storage and, where applicable, provide information on the disclosure of data.
Request data step by step
For landlords, this legal situation means specifically: There are three phases in which you may ask prospective tenants for information before concluding the tenancy agreement. The type of data is limited to a few necessary details in each case. These phases are:
- Before the viewing: Landlords may only ask for Request information for arranging an appointment. This includes name, email address and/or telephone number. Beyond this point, prospective tenants do not have to answer any further questions. Landlords or property managers and/or estate agents may even face penalties if they do not comply with this restriction.
- If interested after the viewing: However, if the landlords continue to offer the property to prospective tenants after the viewing, the latter must provide further information upon request. This includes data that enables the landlord to decide on the allocation of the apartment. Specifically, this means: the number and names of the people moving in, occupation, proof of income for the last three months, information about debts and pets (dogs, cats and similar animals; small animals are excluded). The landlord is also entitled to request information about the applicants’ creditworthiness from a credit agency. However, consent is required for this. All of this data can be summarized in a tenant self-disclosure form.
- Conclusion of the contract: If an agreement on a tenancy is reached, the landlord may request further data before the contract is signed. This includes bank details and, if necessary, a rental guarantee.
This list is very strict, but it complies with the General Data Protection Regulation. Prospective tenants do not have to provide any further information. Landlords even risk having to pay a fine. As a rule, however, they may request a tenant self-disclosure form in the second step to select applicants. However, its contents are severely restricted.
The principle of data minimization relates, on the one hand, to the type of data and, on the other hand, to the timing. The rule of thumb is:
Landlords may only request the information that is absolutely necessary for the current step in initiating the tenancy. This also applies to the tenant self-disclosure form.
No obligation to submit a self-disclosure form
Landlords may request a voluntary tenant self-disclosure form during the application process. However, prospective tenants are generally not obliged to submit one. They may refuse to provide any information, including information on the points mentioned here. However, the landlord is entitled to rent the apartment to other people if the tenant self-disclosure form is incomplete or is refused in its entirety.
Important: Particularly when asked about employment and debts, prospective tenants shouldanswer truthfully. Because they have a duty to cooperate. Concealing unemployment or excessive debt can later even lead to termination of the tenancy without notice. The same applies to current income. Anyone who provides false information must expect termination in the event of a dispute.
Since the data concerns essential information, interested parties should, in their own interest, provide all required answers to questions on the points mentioned. This makes it easier to get the apartment. However, the voluntary tenant self-disclosure form also has substantive limits.
Which data may the landlord not ask for?
In addition to the general restriction on inquiries, there are also genuine taboos. There are questions whose answers landlords would certainly like to know, but which prospective tenants do not have to answer. Such questions include, among others, the following areas:
- marital status,
- nationality (permitted in exceptional cases) or ethnic origin,
- religious affiliation,
- sexual preferences,
- pregnancy and desire to have children,
- political orientation and membership in clubs or associations,
- criminal record/certificate of good conduct,
- hobbies and leisure preferences (for example, barbecuing, musical instruments, etc.)
- smoking habits.
Important: Prospective tenants may even provide false information or refuse to provide information when asked questions or completing a tenant self-disclosure form. There are no legal consequences in this case. Since these inquiries generally take place before a tenancy agreement is signed, however, landlords could easily choose other candidates. In case of doubt, it is important to weigh the options.
Special feature: housing eligibility certificate and identification
There are two other documents that the landlord may request or inspect during the process of initiating the contract or as part of the tenant self-disclosure form. One is the housing eligibility certificate (“B-Schein”), and the other is an identity card or passport. A landlord may have a legitimate interest in both documents.
Provide the housing eligibility certificate in advance
The housing eligibility certificate is a document issued by the municipality. It confirms that prospective tenants are entitled to rent particularly subsidized housing (social housing). The landlord may request this document at the first contact, even before the viewing. This is because they have an interest in renting the apartment only to show authorized persons.
Viewing and Copying the Identity Card
Different rules apply to identity cards and passports. During a viewing, the landlord may check personal details to allow only invited persons into the property. However, they may only inspect identity documents.
During the further process of initiating the contract, the landlord may copy an identity document. However, the holder’s consent is required for this. If consent is not given, they may inspect the identity document and record this visual check. However, it is not permitted to note down the document number.
There is, however, an exception to this rule when purchasing real estate. In this case, estate agents and banks may be obliged to make a copy (money laundering prevention).
Practical Tips: Voluntary Tenant Self-Disclosure
The General Data Protection Regulation significantly restricts the collection of personal data when renting apartments. Since the housing market is very tight in many regions, compromises are often found in practice. Voluntary information provided before the viewing increases the chances of getting the apartment.
However, if the landlord insists on a tenant self-disclosure form in advance, they may face substantial fines. Those affected can contact the competent data protection authority completely informally (usually the state data protection commissioner).
Landlords should therefore always request only the information that is strictly necessary during the steps leading up to the signing of the contract. This is possible—only after the viewing—among other things as part of a tenant self-disclosure form.
Apartment seekers should provide the required data. This allows them to preserve their chance of obtaining a rental agreement for their dream property. However, they do not have to answer questions that go beyond what is necessary, either before a viewing or before signing a contract.