Factsheet 19: Tenant databases

As a tenant, you have rights relating to tenant databases under the Commonwealth Privacy Act and the Rules of Conduct for real estate agents under the Property, Stock and Business Agents Act 2002. This factsheet explains what these laws mean for tenants in New South Wales.

What are tenant databases?

Tenant databases are run by private companies. They collect, hold and give out information about tenants who real estate agents, landlords and park operators say are 'bad tenants'.

Tenant databases are separate from those kept by credit reporting agencies.

How tenant databases work

Real estate agents, private landlords, park operators and others can become members of tenant databases. A membership allows them to check any listings made about tenants by other members and to add information about tenants to the database.

Commonwealth Privacy Act

The Commonwealth Privacy Act has applied to tenant database operators since 21 December 2002. In April 2004, the Privacy Commissioner determined that a tenant database operator, TICA, was in breach of the Act. The commissioner's decision against TICA indicates how other tenant database operators should act in order to comply with the Act.The commissioner determined:

• TICA cannot charge you for confirming if you are listed. If you have been charged for this after 21 December 2002, TICA is liable to compensate you.
• If you are listed, TICA cannot charge you an excessive fee for giving you the details of the listing. The commissioner suggested the following charges would be allowed: by mail $8.80, by phone (190 number) $4.50 per minute up to $32. If you have been charged more than these amounts after 21 December 2002, TICA is liable to compensate you.
• TICA's listings were not accurate, complete and up to date. If you suffered loss because of an inaccurate, incomplete or out-of-date listing after 21 December 2002, TICA may be liable to compensate you.
  
• If you dispute a listing, TICA must remove or amend the listing if the member who listed you cannot validate the information. Also, TICA should allow you to add a statement to any listing you dispute.

(Note: TICA no longer records reasons for listing – only who the person listed is and who made the listing.)

The commisioner also suggested a standard set of reasons for listings and removal of listings after four years.

The Act does not require that:

• all reasons for listing must relate to a breach of a tenancy agreement, or that reasons must have been proved before a tribunal or a court.
• the person listed must be a tenant
• a person can only be listed after a tenancy has ended.

The Privacy Commissioner determined that the limit on the fee charged through TICA's 190 phone number did not apply when the call was about disputing the details of a listing. If you call this number, use it only to get details of your listing, not to argue about why a listing should be changed. Put any dispute about a listing in writing instead.

If you have a problem with a tenant database, tell the database operator and make a complaint to the Privacy Commissioner.

Rules of conduct for real estate agents

Real estate agents must comply with the Rules of Conduct under the Property, Stock and Business Agents Act 2002. One of these rules relates to agents' use of tenant databases. This rule:

• restricts the circumstances in which an agent may list you on a database
• sets out requirements that databases must meet before agents may use them to make listings.

Restrictions on listings

An agent may only list you if:

• you were a tenant under a residential tenancy agreement
• the tenancy has ended
• the agent notified you of the proposed listing and gave you an opportunity to respond
• the reason for the listing is allowed by the Rules of Conduct (see below).

If you are listed and any of the above do not apply to you, you can make a complaint about the agent who listed you.

The Rules of Conduct allows only five reasons for listing:

• you owe money because of rent arrears (but see note below)
  
• you owe money because of intentional or reckless damage to the premises (but see note below)
• you have failed to pay money as ordered by the Consumer, Trader and Tenancy Tribunal
• the tenancy was terminated by the tribunal because you seriously or persistently breached the tenancy agreement
• the tenancy was terminated under section 68 of the Residential Tenancies Act (serious injury or damage).

Note: If there is a rental bond available and the amount you owe for rent and/or damage is less than the bond, then you cannot be listed.

If you are listed for some other reason, you can make a complaint about the agent who listed you.

Requirements for databases

Agents may only list on tenant databases that meet these requirements:

• All persons listed must be allowed free access to their listing.
• If a person claims that the listing is inaccurate, incomplete or out of date, the listing must be amended or, if the agent disputes the claim, the person's objection must be noted on the database.
• If a person is listed for a debt and pays the debt within three months, the listing must be removed within seven days of the payment.
• If a person is listed for a debt and pays the debt after three months, the listing must be changed within seven days to show the payment was made, and the listing must be removed within three years of the date of listing.
• If a person is listed for a reason other than a debt, the listing must be removed within three years of the date of listing.

If you are listed on a database that does meet any of these requirements, you can make a complaint about the agent who listed you.

Complaining about an agent

Make complaints about agents to the NSW Office of Fair Trading. Fair Trading can take disciplinary action against agents who breach the Rules of Conduct, including fines and suspension of the agent's licence. Fair Trading cannot order the agent to pay you compensation.

The Rules of Conduct do not allow you to apply to the Consumer, Trader and Tenancy Tribunal for orders relating to a database listing.

The Rules of Conduct only apply to agents

If you are listed by a private landlord, residential park operator, community housing association or boarding house operator, you cannot make a complaint under the Rules of Conduct.

The Rules of Conduct do not apply to tenant database operators – just the agents who use them. If you have a problem with a tenant database, you must make your complaint against the agent.

Listings made before 15 September 2004

The Rules of Conduct's restrictions on listings do not apply to those made before 15 September 2004. So, if you were listed before this date without notice and without a proper reason, you cannot make a complaint under the Rules of Conduct.

Contacting database operators

The main database operator in New South Wales is TICA. You can check if you are listed on its database by writing to PO Box 120, Concord NSW 2137. Specify that "free access is required". TICA will take up to 28 days to respond. TICA will respond quicker if you contact it by other means, but will charge you for it.

Be warned that if you use TICA’s 190 phone number you will be charged $5.45/minute (higher from mobile or pay phones).

See TICA’s website (www.tica.com.au) for full details about its procedures and costs.

Other operators include:

• National Tenancy Database (www.ntd.net.au)
  
• Trading Reference Australia (www.tradingreference.com)
  
• Barclay MiS (www.barclaymis.com.au).

See their websites for procedures and costs.

Contacts and further information

Office of the Federal Privacy Commissioner: phone 1300 363 992, TTY 1800 620 241, www.privacy.gov.au

Office of Fair Trading: PO Box 972 Parramatta NSW 2124, phone 02 9895 0297, free call 1800 625 963. Office of Fair Trading factsheets:

• Tenant databases: information for renters
• Using tenant databases: information for agents.
  

Updated: October 2008

Further help

Tenants NSW website: www.tenants.org.au
Tenants Hotline: 02 8117 3750 or 1800 251 101
Tenants Advice and Advocacy Services: see the Tenants NSW website or call the Tenants Hotline to find your local general or Aboriginal service
Renting Services (NSW Office of Fair Trading): 133 220
Other factsheets from www.tenants.org.au/publish/factsheets or your local Tenants Advice and Advocacy Service.

The information in this factsheet:
• is intended as guide to the law and should not be used as a substitute for legal advice
• applies to people who live in, or are affected by, the law as it applies in New South Wales, Australia.
Originally developed by Western Sydney Tenants’ Service. Produced by Tenants’ Union of NSW and NSW Tenants Advice and Advocacy Services.
© Tenants' Union of NSW.