Factsheet 19 [PDF]

As a tenant in NSW you have rights under the Residential Tenancies Act 2010.

Note: For listings in databases existing immediately before 31 January 2011, the information in this factsheet will not apply until 1 May 2011. From this date, this information will apply to all tenant databases. Contact your local Tenants Advice and Advocacy Service if you are unsure about your situation.

About tenant databases

Tenant databases are run by private companies (generally for profit). They collect, hold and give out information about tenants (including residents of residential parks) 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.

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.

Restrictions on listing – landlords/agents

A landlord/agent can only list information about a person in a tenant database if:

• the person was a tenant under a residential tenancy agreement that has terminated (or they were a co-tenant whose tenancy has terminated), and
• they breached the tenancy agreement, and
• because of the breach, they owe an amount more than the bond for the tenancy agreement or the Consumer, Trader and Tenancy Tribunal (CTTT) has made a termination order, and
• the information identifies the nature of the breach and is accurate, complete and unambiguous.

Before making a listing

Before the landlord/agent can list information about a tenant, they must:

• give the tenant a copy of the information they want to list on the database (or otherwise take steps to disclose it to the tenant)
• give the tenant at least 14 days to review the information and respond
• consider any response by the tenant.

(If the landlord/agent fails to do this, they face a fine of up to $2,200.)

In their response the tenant can:

• object to the entry of the information in the database, or
• object that the information is inaccurate, incomplete or ambiguous.

Restrictions on listing – database operators

A database operator, or anyone else, must not enter information about a tenant in a database unless:

• it is at the request of a landlord or landlord’s agent
• the landlord/agent is making the listing in accordance with the ‘Restrictions on listing’ outlined above.

Finding out about a listing

On application for a tenancy

If you apply for a tenancy and the landlord/agent finds information about you on a tenant database, they must write to you within 7 days stating:

• that you are listed
• the details of the landlord/agent who listed you (from whom you can seek a copy of the information)
• how to contact the database operator to find out what information it holds about you
• how and in what circumstances you can have the information removed or amended.

Contacting the landlord/agent who listed you

On your written request, the landlord/agent who listed you must give you a copy of the information that they listed on the database. They must provide it within 14 days of your request, free of charge.

Contacting database operators

You may need to contact more than one database operator if you do not know which one holds information about you.

The main 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 you require free access. TICA may take up to 28 days to process the request. According to TICA’s website you will need to provide:

• your full name
• your date of birth
• your driver’s licence number
• your current address
• a stamped, self-addressed envelope.

Contacting TICA by other means will get a quicker response but you will be charged. Calls to its public enquiries number (1902 220 346) 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).

Amendment and removal of listings

When a landlord/agent becomes aware of inaccurate, incomplete, ambiguous or out-of-date information on a database, they must write to the database operator within 7 days and instruct it to:

• amend the information to make it accurate, complete and unambiguous, or
• remove the out-of-date information from the database.

The database operator must then amend, or remove, the information within 14 days. If it does not, it faces a fine of up to $2,200.

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.

Limit on period of listing

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

Disputes about listings

You can apply to the CTTT for an order that information about you is:

• wholly or partly removed from a database
• amended in a stated way
• not listed in a database.

The CTTT 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.

See Factsheet 11: Consumer, Trader and Tenancy Tribunal and contact your local Tenants Advice and Advocacy Service for advice about taking action in the CTTT.

Tips for minimising the impact of a listing

The way to minimise the impact of a listing depends on your local area as landlords’/agents’ use of databases can vary from one area to the next. Contact your local Tenants Advice and Advocacy Service to discuss how you can best apply for other tenancies 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 do not dispute the reason for the listing, talk to the landlord/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, ask the landlord/agent to provide a written statement that acknowledges this. (If they are reluctant to do so, keep your own documentation that will serve a similar purpose.)

Contacts

• Community Legal Centres: phone 02 9212 7333 or see www.clcnsw.org.au for your local centre
• LawAccess NSW: phone 1300 888 529

January 2011

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.