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Your agent may be threatening to 'blacklist' you for causing trouble during your tenancy....
Tenancy databases are regulated by the Residential Tenancies Act.
You cannot be listed for something trivial.
You can dispute a listing if you think it is unfair or incorrect.
IMPORTANT NOTE:
The information provided is based on the current state of ACT tenancy law and details may change. While every effort has been made to ensure the information on this site is up-to-date it is not a substitute for specific legal advice on complex matters.
Please take note of when the page was last updated.
If the information here does not apply to your specific situation we suggest you seek expert assistance and advice
TENANCY TIPS:
Tenancy Databases in the ACT
** last updated: 06/07/09 **
Download a .pdf version of this tip sheet
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. 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.
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:
Accuracy
Some of the details are allegations that have not been verified by either the tenant, or the ACT Civil and Administrative Tribunal (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Information may also be out-of-date.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.
Privacy
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.
Mistaken identity
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 tribunal, 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?
1. ACT Tenancy Law (what landlords and agents must do)
Tenancy databases in the ACT are regulated by Part 6A 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 107D
Before listing a tenant, an agent/landlord must follow the procedures set out in section 107D of the RTA:
1. The tenant must have been named on the residential tenancy agreement, and that agreement must have ended.;
2. 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
3. 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 by Clause 99 of the Standard Residential Tenancy Terms.
For what reasons could I be listed?
Under RTA section 107D(1)(c) there must be a “reason prescribed by regulation”. At present, no regulations have been made. So technically, while there are no “prescribed reasons” there can be no legal justification for a listing.
However, it is useful to consider similar law in Queensland which provides approved reasons:
· Outstanding debts to the landlord (where the amount outstanding is more than bond being held) OR
· A termination order made by the tribunal because of either objectionable behaviour, or repeated breaches of the lease.
2. 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.
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 s107D(1)(d), a listing must not remain any longer than the “maximum period prescribed by regulation”. Again, no regulations have been made yet. But in other jurisdictions the maximum period is generally 3 years, and this is consistent with the Privacy Commissioner’s rulings.
What if I have been listed incorrectly or unfairly?
Under RTA sections 107E and 107F, if you feel that you have been listed on a database wrongfully, because either:
· the procedures under RTA s 107D (eg notification) were not followed properly, or
· the listing is incorrect or misleading, or
· the listing is unjust in the circumstances ,
you can apply to ACAT for an order that the listing person must either:
· remedy the breach of Section 107D,
· make corrections to the listing, or
· delete the listing from the database altogether.
You can also apply to ACAT for an order to prohibit a proposed wrongful listing, or an order that certain details be amended before being listed (RTA s107G).
Compensation
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.
Contact Details
The main database operator is
TICA (Tenancy Information Centre Australasia Pty Ltd)
PO Box 120
Concord NSW 2137
Tel: 02 9743 1800
enquiries@tica.com.au
* TICA now offers free access to listings via mail only. You must specifically request free access (otherwise you will be charged at their ‘premium rate’), provide your full name, date of birth, drivers license number, passport number (if not Australian), current address and include a stamped, self-addressed envelope. TICA will process your request within 28 days.
Some other operators include
TRA (Trading Reference Australia Pty Ltd)
PO Box 372
Rose Bay NSW 2029
Tel: 0419 412 457
NTD (National Tenancy Database)
PO Box 156
Collins Street West VIC 8007
Tel: 03 9610 4996
For further information on Privacy Issues and Federal Privacy Law, contact:
Federal Privacy Commissioner
GPO Box 5218
Sydney NSW 2001
Tel 1300 363 992
This
is a summary of your rights and responsibilities.
If
you have a specific problem, you should seek more detailed advice.
The information provided is based on the current state of
tenancy law and details may change.
Tenancy
Tips © 2009 Tenants' Union ACT Inc.
The support of the ACT Government through the Dept. Justice
& Community Safety is gratefully acknowledged