Residential Tenancy Databases
What is a tenant’s ‘blacklist’?
Residential Tenancy Databases (RTDs) are privately owned and operated, electronic databases that collect information from real estate agents about tenants to assist property managers and landlords assess risk and identify potential ‘bad’ tenants. These tenancy databases are often referred to as ‘blacklists’. RTDs operate nationally and at the current time are largely unregulated.
What problems do tenants experience with the current operation of RTDs?
While Privacy NSW acknowledges that RTDs may provide landlords and property owners with a legitimate method of risk minimisation to protect their interests, there are concerns that RTDs currently operate nationally in a largely unregulated environment, without industry wide or national standards. As a result, the current operation of RTDs:
- does not provide for fair, objective or consistent listing criteria in an environment where there are numerous RTDs;
- does not ensure the accuracy of the information provided, collected, held and disclosed. This is particularly relevant where RTD operators record information received from other parties such as real estate agents, but without any knowledge or verification of the accuracy of that information;
- does provide adequate notification to the tenant of the listing and its content where listings are often made without the knowledge of the tenant;
- does provide transparency or affordable accessibility for tenants in relation to listings made, or to be made about them;
- does provide adequate and uniform mechanisms for accountability or dispute resolution where an adverse listing is disputed. This is particularly relevant where there are two parties involved in the listing process, the property manager who makes the listing and the various RTD operators who maintain the databases. It is not clear how, or if, a tenant who disputes an adverse listing can have the listing removed or amended; and
- does ensure that listings remain on RTDs for appropriate periods of time which are not excessive.
As a result, the operation of RTDs can unfairly impact on the privacy of tenants, often affecting their ability to rent property in the future. Real estate agents and property managers often rely heavily on RTDs in deciding whether or not an individual is a suitable tenant. Individuals may find that if an adverse report is currently on an RTD then it is impossible to gain a tenancy, irrespective of:
- the relative importance of the incident;
- the accuracy of the report;
- the fact that the tenant remedied the problem within reasonable time of being made aware of the breach; and/or
- the length of time since the incident occurred
Can I make a complaint about an RTD operator or a real estate agent?
If you discover that you have a listing on an RTD which you think is incorrect or unfair you should first find out which RTD you have been listed on. You should contact the real estate agent who made the listing to find out this information. You should then contact the RTD operator to find out what the listing says. Most RTD operators will make a charge for providing this information. If you believe that the listing is incorrect or unfair you may be able to make a privacy complaint.
The Office of the Federal Privacy Commissioner administers the Federal Privacy Act 1988. That Act covers many private sector organisations such as real estate agents and RTD operators and regulates how they collect, store, use and disclose personal information. However there is an exemption from the Federal Privacy Act for small businesses with an annual turnover of less than $3 million, so some real estate agents may not be regulated by the Commonwealth Privacy Act. Most RTD operators are likely to be covered by the Privacy Act.
If you have a listing on an RTD which you think is incorrect or unfair you should contact the Office of the Federal Privacy Commissioner at www.privacy.gov.au or on 1300 363 992.
How are RTDs regulated?
Real estate agents who list tenants on RTDs are regulated by the Property, Stock and Business Agents Amendment (Tenant Databases Regulation) 2004. For more information on the Regulation please contact the Office of Fair Trading on 133 220 or see their website at www.fairtrading.nsw.gov.au.
Privacy NSW provided a submission to the Office of Fair Trading about the Regulation when it was in draft format.
At the Federal level, the Ministerial Council on Consumer Affairs and the Standing Committee of Attorneys General published an Issues Paper in 2003 and set up a working party to consider the national regulation of RTDs. For more information on that project please see the Ministerial Council’s website at www.consumer.gov.au.
Privacy NSW provided a submission to the Ministerial Council on Consumer Affairs and the Standing Committee of Attorneys General in regard to their RTD Issues Paper.
What is the latest news about the operation of RTDs?
In April 2004 the Federal Privacy Commissioner issued four complaint determinations about tenancy databases. The Federal Privacy Commissioner found that TICA Default Tenancy Control Pty Ltd, which operates one of Australia's largest tenancy databases, had breached the Privacy Act. The Commissioner ordered its operators to rectify their information handling practices.
The breaches of the Privacy Act relate to TICA over-charging for access to information they hold, not taking reasonable steps to keep information they hold accurate and up to date and holding some information for too long.
See the website of the Office of the Federal Privacy Commissioner for more information about these complaint determinations.
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