Most investors and tenants have heard of people being put on a tenancy database or placed on a "blacklist". Often there is little understanding around how these lists work, the circumstances under which a tenant can be added to the list, and how someone can be removed from the list.
What is a tenancy blacklist or tenancy database?
A tenancy database is a list able to be used by real estate agents to assist with screening prospective tenants during their application for a rental property. These lists contain information about tenants which may be helpful for an agent in assessing the suitability of a tenant for a rental property.
Information obtainable from a tenancy database check may include:
Who runs the tenancy database and how do I get access?
There are actually several separate tenancy databases active in NSW, including TICA, the National Tenancy Database and Trading Reference Australia. Each of these sources are run by private companies, not by the NSW Government or the NSW Civil and Administrative Tribunal (NCAT).
While some sources are shared between databases, they do not mirror each other. Access to the databases are restricted to members (e.g. real estate agents) who pay membership fees in order to access their data.
Importantly, the Residential Tenancies Act 2010 sets out who, when, and why a person can be listed.
How can a tenant be listed on a tenancy database?
Firstly, a tenant can only be listed on a tenancy database if they are named as a tenant on a lease. Others such as unlisted children, visitors or unnamed occupants cannot be listed.
Also, a tenant can't be listed on a tenancy database until after their tenancy has ended.
A common misconception is that a tenant can be listed on a tenancy database simply by falling behind with the rent, not looking after the property in a satisfactory way, or for being given a termination notice. While these issues alone don't enable a tenant to be placed on a database, they may be a precursor to an eligible reason for listing.
There are only two reasons a tenant can be listed on a tenancy database, and these are:
Information provided by agents and recorded on a tenancy database must include the reason for the listing in a clear and complete way. For example "Eviction order given on the basis of rental arrears, tenant owing $720 in rent above what is covered by the bond".
Note that any tenancy which has ended due to domestic violence circumstances cannot be added to a database. This restriction helps to minimise any potential negative impact for affected parties attempting to secure accommodation elsewhere.
Will a tenant know if they have been listed on a tenancy database?
Yes. The tenant must be notified in writing at least 14 days in advance before a landlord or agent lists them on a database. After receiving notification, if the tenant believes the listing is incorrect or not justified they can apply to NCAT to argue for the prevention of the listing.
Additionally, if an agent or landlord searches for a potential tenant's details when considering them for a rental property, and discovers them on a tenancy database, the tenant must be advised of this discovery in writing. Within this notification to the tenant, the agent or landlord must advise the contact details of the person who listed the tenant and how they can check the details of what the listing says. The agent providing this information to the tenant does not have to advise the tenant themselves of the reason for the listing.
Tenants are entitled to a copy of the information from the person who listed them (free of charge) or direct from the database operator (often for a fee).
How does a tenant get removed from a tenancy database?
Any listing that is older than three years must be removed from a tenancy database. Listings under three years must also be removed if they are 'out-of-date'. Additionally, listings must be updated or removed if the information provided is inaccurate, incomplete or unclear.
If a tenant believes a listing is unjust, they can seek to have their name removed from a tenancy database. The agent or landlord must be notified of the request and if in agreement with the change must make any required change within 7 days if they can make the update themselves, or within 14 days if they need to notify the database operator to make the change on their behalf.
If a tenant and landlord or agent cannot agree over a disputed listing the tenant can apply to NCAT to have incorrect, out-of-date or unjust listings removed. At this time, the Tribunal can order that information about a tenant be wholly or partly removed, changed, or not listed at all if it was a proposed listing. The Tribunal can also award compensation to a tenant if they have suffered a loss as a result of inaccurate, unclear or out-of-date information being listed on a tenancy database.
For further information on tenancy database listings see the NSW Fair Trading website.
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