Many real estate agents threaten to list tenants on a database but tenants are not often listed.
You can only be listed on a tenancy database if all of these things have happened
- 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 (ACAT) 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 ACAT to change or remove the listing, you must do so within 6 months of becoming aware of the listing
The above rules do not apply to a database kept by an entity for 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 tenancy databases?
Tenancy databases provide landlords/agents with information about the tenancy history of potential tenants. The idea is to alert them to problems with previous tenancies such as unpaid rent or property damage. Agents/landlords are unlikely to rent to people who are listed, as they are seen as a “risk”.
How do they work?
The databases are run by private companies, not by state or federal governments or the ACAT. Real estate agents/landlords become “members”. Members provide the database with information about people they say are “bad tenants” and can also check any listings made by other members. Databases in operation include TICA, DataKatch, Barclay MIS, and National Tenancy Database.
Some potential problems
Tenancy databases are better known as “blacklists”, and a listing can have serious implications for your ability to find rental accommodation. Some potential problems with tenancy databases are:
Some of the details are allegations that have not been verified by either the tenant, or the ACAT. In some cases, allegations turn out to be untrue, or the tenant had an explanation or defence.
Information may also be out-of-date. For example, even if the tenant fixes the problem they were originally listed for (e.g. by paying rent arrears) they could remain listed.
Tenancy databases contain personal information about the tenant. Tenants may be listed without being told, and without an opportunity to have a say if they disagree with the information being listed.
Potential tenants may be refused a property because their name is the same as another person listed on the database, or a listing is incomplete or contains errors.
Asserting tenants’ rights
Some members list tenants because they view them as being “difficult”. This may simply mean that the tenant stood up for their rights. There have been cases of tenants being listed after taking the landlord to the ACAT, where the tenant had actually won the case!
Threats of listing
Some tenants may be reluctant to stand up for their legitimate rights simply because of the fear of being listed on a database.
Access to listings
Tenants have experienced difficulties accessing the information kept on them, as some database companies either refuse to provide details, or charge excessive fees for access. Without access to the information, it is impossible to then have it removed or amended if it is inaccurate!
What does the law say?
ACT Tenancy Law (what landlords and agents must do)
Tenancy databases in the ACT are regulated by Part 7 of the Residential Tenancies Act 1997 (RTA). This restricts the use of tenancy databases, and addresses some of the potential problems.
Procedures for listing: s 92
Before listing a tenant, an agent/landlord must follow the procedures set out in section 92 of the RTA:
The listing person must either write to the tenant, or take other reasonable steps to tell them about the information they propose to include; and
The listing person must give the tenant a reasonable opportunity to review the information.
Reasonable enquiries must be made to find the tenant. If they have tried, but cannot find you, they are not required to notify you. For this reason, it is very important to provide a forwarding address whenever you leave a tenancy. As a tenant, you are also required to do this under Clause 99 of the Standard Residential Tenancy Terms.
For what reasons could I be listed?
Under RTA section 91, a person can be listed if they were named in a residential tenancy agreement that has ended, the person has breached the agreement and, because of the breach, either the person owes the lessor an amount that is more than the bond or ACAT has made an order terminating the tenancy (because of the breach).
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 ACAT 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 owed more money than the amount of the bond. However, in the second example the ACAT has considered your side of the story and has made an independent and impartial decision about the matter.
National Privacy Laws (what database operators must do)
The Commonwealth Privacy Act 1988 also applies to database companies. This Act is administered by the Federal Privacy Commissioner. Companies must operate according to the National Privacy Principles (NPP) when collecting personal information. This includes notifying tenants and providing them with access to listings about them, and ensuring accuracy of the information they collect. For more information about these rules, and how you might be able to enforce them if you are listed on a tenancy database, contact the Office of the Privacy Commissioner (www.privacy.gov.au or Tel: 1300 363 992)
How do I know if I have been listed?
You should be notified before being listed on a database. However if the rules have not been followed, or they have been unable to contact you, you may not be notified in advance.
You may only discover that you are listed after being repeatedly knocked back for tenancies. Contact the agency who rejected your application and ask whether it was because of a database listing. If it is, find out the name of the database company. Agents often have the names of database operators displayed in their offices, websites or on their application forms.
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. You can write to the database operator to check if you’ve been listed and, if so, assess whether the information is accurate. Keep a copy of your letter and a record of when it was sent.
How long would a listing last?
Under RTA section 97(1), a listing cannot last more than 3 years. In certain circumstances, it might be less.
What if I have been listed in contravention of the legislation?
Under RTA sections 98, if you feel that you have been listed on a database in contravention of the legislation, you can make an application to the ACAT. An application must be made within 6 months after the day you become aware of the listing of the personal information in the database, If the ACAT decides there has been a contravention it may orders a person to take steps to remedy the contravention or make any other order it considers appropriate.
What if I have been listed incorrectly or unfairly?
Under RTA section 99, if you feel that the listing is incorrect or misleading or unjust in the circumstances, you can apply to ACAT for an order that the listing person must either remove stated personal information from the database or amend the personal information in the database.
What if I am aware of a proposed listing?
Under RTA section 100, you can apply to ACAT for an order that the listing person either not list your personal information in the database or an order that the listing person not list your personal information except with stated changes or conditions.
You may also be eligible for up to $5,000 as compensation from the listing person for any loss or suffering caused by the wrongful listing – for example, if you were repeatedly rejected for tenancies and had nowhere to live.
You could also take action against the database operator for breach of the Privacy Act. For further details, contact the Federal Privacy Commissioner.
How to minimise the impact 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 or landlord 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.