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 NSW.

What are tenant databases?

Tenant databases are run by private companies (generally for profit). They collect, hold and give out information about tenants who real estate agents, landlords and residential park operators say are ‘bad tenants’.

The records they hold are 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 including their financial history and general conduct as a tenant.

How they work

Real estate agents, private landlords, park operators and others can subscribe to tenant databases. This allows them to check listings made about tenants by other subscribers and to add information about tenants to these databases.

Regulation of agents’ use of databases

There are rules that real estate agents must follow when using tenant databases: the Rules of Conduct under the Property, Stock and Business Agents Act 2002 (Schedule 6A).

Note that these rules only apply to real estate agents and do not apply:

• to landlords, residential park owners, boarding house operators, housing organisations or others
• to listings made before 15 September 2004 (when the regulation started).

The rules set out when and why an agent can list a tenant.

Circumstances for listing

An agent can only list a person if:

• the person was a tenant under a residential tenancy agreement which the agent managed on behalf of a landlord
• the tenancy has legally ended
• they notified the tenant of the proposed listing and gave them a chance to respond
• the reason for listing is allowed under the Rules of Conduct (see below).

Reasons for listing

An agent can only list a tenant because:

• the tenant owes the landlord more than the bond for rent arrears or for the cost of fixing intentional or reckless damage to the premises, or
• the tenant has failed to pay money to the landlord as ordered by the Consumer, Trader and Tribunal (CTTT), or
• the CTTT has terminated the tenancy because the tenant broke the residential tenancy agreement by threatening or causing damage to property or injury to person, or by failing to pay money to the landlord as ordered.

Finding out if you are listed

You may need to contact one or more database operators.

The main database operator in NSW 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 respond in up to 28 days.

You will need to provide:

• your full name
• address/es of the tenancy/ies for which you might be listed
• your driver’s licence, passport or Medicare number for identification
• a stamped, self-addressed envelope.

Contacting TICA otherwise will get a quicker response but you will be charged. Calls to its public enquiries number cost $5.45/minute (more from mobile or pay phones). See www.tica.com.au for full details about 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).

Complaining about an agent

If you believe you have been unfairly listed you have the right to make a complaint about the conduct of the listing agent to NSW Fair Trading. Contact your local Tenants Advice and Advocacy Service (TAAS) for advice before making such a complaint.

Getting a listing removed

There are very few circumstances in which a database listing, once made, can be removed at the request of a tenant. The law in NSW affects real estate agents’ use of databases rather than database operators themselves.

If your information is collected and provided to a database without your consent, it may be a breach of Commonwealth privacy law (see below). Most real estate agents get around this by getting your written consent as part of the rental application process.

If you have been listed in a case of mistaken identity, you should consider taking legal action. Get legal advice – contact your local community legal centre or LawAccess NSW.

Note that the CTTT has no jurisdiction to hear matters about database listings.

Complaining about a breach of privacy

The Commonwealth Privacy Act 1988 covers businesses whose annual turnover is greater than $3 million – this includes most real estate agencies.
Contact the Office of the Privacy Commissioner about who you can complain about, how to make a complaint and possible outcomes.

Tips for dealing with a listing

The way to minimise the impact of a listing depends on your local area, as agents’ use of databases can vary from one area to the next. Contact your local TAAS to discuss how you can best apply for another tenancy if you are listed.

There are a few things to consider, no matter where you are:

• Find out who listed you and why. Get as much information about a listing as you can from as many sources as possible. This might involve writing to a database operator or an agent you suspect made a listing.
• If you dispute the reason for the listing, consider the best way to raise this dispute. What evidence do you have? What evidence is the real estate agent likely to have? Are there grounds for a complaint? Should you consider a conciliatory approach?
• If you do not dispute the reason, talk to the agent about what you can do to resolve the issues that lead to the listing (e.g. making payments towards a debt). Keep a written record of any agreement you come to.
• Once you have resolved the issues (either by dispute or agreement) ask the agent to provide a written statement that the reasons for the listing were in error or have been resolved. (Many agents will be reluctant to do this, so keep your own documentation that will serve a similar purpose.)
• Do not rely on an agent’s promise to remove a listing as the agent has no direct control over the content of the database.

Contacts and further information

• NSW Trading: PO Box 972, Parramatta NSW 2124, phone 02 9895 0297, free call 1800 625 963, www.fairtrading.nsw.gov.au
• NSW Fair Trading factsheets:
  • Tenant databases: information for renters
  • Using tenant databases: information for agents
• Community legal centres: phone 02 9212 7333 or see www.nswclc.org.au/clcs.html for your local centre
• LawAccess NSW: phone 1300 888 529
• Office of the Privacy Commissioner: Privacy Enquiries Line 1300 363 992, www.privacy.gov.au

Updated: November 2009

Further help

Tenants Advice and Advocacy Services: see www.tenants.org.au/publish/contact-us to find your local general or Aboriginal service
Tenants NSW website: see www.tenants.org.au/publish/factsheets for other factsheets and sample letters
NSW Fair Trading Information Centre: 133 220

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.
© Tenants' Union of NSW.