Can I be listed on a tenant database?

Tenancy Databases

Summary

  • Many real estate agents threaten to list tenants on a database but tenants are not often listed
  • You can only be listed if:
    • You breached your Residential Tenancy Agreement AND
    • Because of the breach:
      • you owed the landlord money that was more than the bond you paid OR
      • a court or the ACT Civil and Administrative Tribunal has made an order terminating the residential tenancy agreement
    • AND the personal information listed relates clearly to the breach, and is accurate, complete and clear.
  • The person who lists you must make reasonable attempts to give you a copy of the listing and give you 14 days to make submissions objecting to or clarifying the information
  • If you want to apply to the Tribunal change or remove the listing, you must do so within 6 months of becoming aware of the listing
  • These rules do not apply to a database kept by an entityfor use only by the entity or its officers, employees or agents – e.g. LJ Hooker’s internal database, which may be used for giving rental references over the phone
  • The information they hold is separate from those kept by credit reporting agencies and serve a different function. They are concerned entirely with a person’s performance as a tenant

What are they?

Tenancy databases are run by private companies, not by state or federal governments or the ACT Civil and Administrative Tribunal. These private companies are called “database operators”. These databases receive and hold information about tenants and their rental history. They are often called “blacklists” or “bad tenant databases”.

Members of the database pay a membership fee to be able to use and access the database. The National Tenancy Database and DataKatch only allow Real Estate Agents to become members, but TICA and Trading Reference Australia allow landlords to become members. Only members can add to and see the information listed on the database. Members use the database to check to see if a tenant has been listed by another member, and why the listing has been made.  There are a number of different companies who run tenancy databases. Databases in operation include TICA, DataKatch and the National Tenancy Database.

How are they regulated and why?

Tenancy databases are regulated by the Residential Tenancies Act 1997 (ACT). These databases are regulated so that the information is accurate, legitimate and is not ambiguous.

Applying for a property

Does an agent have to tell me they are using a database when I apply for a property?

If a landlord or agent proposes to use a database to decide whether or not to accept you as a tenant they must tell you in writing:

  • The name of the database/s they use or propose to use
  • The reason they use a database to check tenant history
  • How you can contact and obtain information from the database operator

Often you will find a section on the application form where the agent will tell you they will be using a database – and that they may use your information to search the database, and may disclose your information to that database.   If you sign the application form, you are indicating that you agree for the agent to use the database to search for information about you, and potentially also submit information about you.

What happens if the agent or landlord finds information about me in the database?

If the agent or landlord finds information about you in the database, they must give you written notice as soon as possible (and at least within 7 days) of:

  • The name of the database
  • What information is listed about you
  • The name of the person/s who listed you
  • How and in what circumstances you can apply to have the information removed or amended.

Being listed on a database

Who can be listed?

Only a person who is named as a tenant on a Residential Tenancy Agreement that has finished. The agreement MUST be finished before you can be listed.

How and when can I be listed on a tenancy database?

The real estate agent or database operator must not list you on the database unless they have given you a copy of the information they want to list on the database and given you 14 days to review the information.  You can object to the information being included or make corrections to the accuracy, completeness and clarity of the information. The real estate agent only needs to consider your objection or corrections and they can still list it even if you disagree.

You can only be listed if:

  • You breached the Residential Tenancy Agreement AND
  • Because of the breach:
    • you owed the landlord money that was more than the bond you paid OR
    • a court or the ACT Civil and Administrative Tribunal has made an order terminating the residential tenancy agreement
  • AND the personal information listed relates clearly to the breach, and is accurate, complete and clear.

Here are two examples of how you could be listed.

E.g. 1

You breached the tenancy agreement e.g. by not paying all your rent, or not returning the property to substantially the same condition as it was in when you moved in AND the rent or the compensation for cleaning/repairs cost more than the bond.

E.g. 2

You were not able to pay all the rent, and the landlord applied to the Tribunal for an order to have the tenancy terminated and have you evicted from the property. The landlord was successful.

The first example can be very difficult for tenants to object to as there is no external or independent body that has had to confirm you breached the tenancy agreement or that you owe more money that the amount of the bond. However in the second example the Tribunal has considered your side of the story and has made an independent and impartial decision about the matter.

How can I find out if I am listed?

If your real estate agent has not told you they have listed information about you,  you can still request that the agent or the database operator provides you with a copy of any information about you in the database.  You need to make your request in writing and you may need to pay a fee (which cannot be excessive). Once you do this, the information must be provided within 14 days.

There are a few different companies that run tenancy databases so it may be necessary to get in touch with a few of them to find out if you have been listed.

Contacting databases

The main operator in the ACT/NSW is TICA. You can check if you are listed on its database by writing to PO Box 120, Concord NSW 2137. Specify that you require free access. TICA may take up to 28 days to process the request. You can phone TICA but this is costly ($5.45 per minute, or more from mobile or pay phones) and you will not get a printed copy of a listing. TICA’s public enquiries number is 1902 220 346. See www.tica.com.au for full details about procedures and costs.

Other operators include:

What protection do I have?

You do have some protection. The information listed must be relevant to the breach. For example if you breach the tenancy agreement by not paying your rent then an agent cannot list information about your pets because this is not relevant to the issue of rent payments.

The information must also be accurate, complete and clear. Which means it cannot be false, leave out vital details or be hard to understand. For example statements which suggest things about a tenant’s personality are not relevant and not accurate (they are only personal opinion). Other ambiguous statements like “and she did a whole lot of other bad stuff” are ambiguous, or not clear and cannot be included.

Updating or removal when out of date, incorrect or unjust

If you find out that there is information about you on a database that does not comply with the regulations then you should write to the database or the real estate agent who put the information there.

When a real estate agent or database operator becomes aware that a listing is incomplete, ambiguous or out of date they must write to the database operator within 7 days and ask them to change the information or remove the information. If the database operator does not do this within 14 days then they face a fine of around $2000.

A database operator must not keep personal information in its database for more than 3 years.

Disputes about listings

You can apply to the ACT Civil and Administrative Tribunal (ACAT) for an order that information about you is:

  • wholly or partly removed from a database
  • amended in a stated way

You must make the application within 6 months after the day that you become aware that there is information about you in the database.

ACAT may make an order if it is satisfied that:

  • the information is inaccurate, incomplete, ambiguous or out-of-date, or
  • the inclusion of the information in a database is unjust in the circumstances.

How to minimising the impacts of a database listing

  • Find out who listed you and why. Get as much information about the listing and why it was made from the tenancy database itself and from your former real estate agents.
  • If you agree with the reasons you were listed e.g. you agree that you missed some rent payments, see if you can speak to your former landlord or real estate agent about how you can resolve these issues
  • If you can resolve the issues, ask the real estate agent to write a letter that acknowledges you have done this. You may also want to keep your own records such as emails from the real estate agent and copies of receipts for payments made.

Other types of databases

There is also another type of database used to record information about tenants.  These are the private internal databases that each individual real estate agency uses to manage their records and are usually confidential. However if you provide a future real estate agent with permission to call your former real estate agent for a reference, this database may be used to provide information about you.  If you are concerned that your former real estate agent is giving out false or misleading information about you from their internal database call the Tenants Advice Service.

IMPORTANT NOTE:

Tenants’ Union ACT publishes this website as a free service to the public.

This website provides information about the law designed to help users understand their legal rights and obligations. However legal information is not the same as legal advice (the application of law to an individual's specific circumstances). Although we make all efforts to ensure our information is accurate and useful, we recommend you consult the Tenants Advice Service for advice specific to your circumstances. You are also free to consult an independent solicitor for a second opinion.

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