Tenancy databases

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1300 744 263

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Tenancy databases hold information about the tenancy history of tenants. They are often used by real estate agents and lessors to decide a tenant’s suitability when assessing tenancy applications. In Queensland, the Residential Tenancies and Rooming Accommodation Act 2008 (‘the Act’) regulates the use of tenancy databases by agents, lessors and database operators.

New tenancy database laws

In Queensland changes to tenancy laws took effect on 1 July 2016 that now provide better protection for tenants in relation to tenancy database listings. These changes have brought Queensland into line with national uniform laws.

What this means for tenants

A 3 year limit now exists for the maximum time a listing can be kept on a database.

Property agents and owners must now disclose to tenants:

  • the databases they use to check the rental history of prospective tenants
  • if the tenant is listed on a tenancy database
  • how the tenant can obtain a copy of the listing
  • how to have the information amended or removed if they disagree with it

If requested, the owner/agent who made the listing must now provide a copy of the listing to the tenant (they may charge a reasonable fee to do this).

Victims of domestic and family violence can seek an order not to be listed, if the breach of the tenancy agreement is due to the actions of their partner (who was also a tenant).

New safeguards to protect tenants against  database listings for relatively small amounts in cases where no bond has been taken.

Transitional Provisions

The new tenancy database rules that began on 1 July 2016 include a three year maximum period that tenant information can be kept on a tenancy database.

Tenancy database operators, listing agents and lessors have a six month transitional period, until January 2017 to ensure all old listings have been removed.

During this transitional period, if you have a database listing that is more than 3 years old, you may need to contact the listing agent, lessor, or database operator to request they immediately remove your out of date listing.

What is a tenancy database?

Tenancy databases hold information about the rental history of tenants. Tenancy databases, such as TICA, are sometimes referred to as ‘blacklists’. If you are listed on a tenancy database you may find it difficult to rent a property.

In Queensland the Act sets out rules an agent or lessor must follow when listing a tenant on a tenancy database and has steps tenants can take to dispute database listings that do not meet the requirements of the Act. These database rules apply to all external tenancy databases, but do not apply to internal databases kept by a real estate agent or housing provider.

Quick tenancy database facts

  • Agents and lessors can only list tenants on a database in accordance with the Act.
  • Tenants can only be listed for a lawful reason allowed under the Act.
  • Tenants must be informed about proposed listings and given 14 days to object.
  • Tenants can only be listed after the tenancy has ended.
  • Only tenants named on the agreement can be listed.
  • Tenants cannot be listed for more than 3 years.
  • Tenants can dispute and seek removal of listings that do not comply with the Act.

 

When tenants apply for a tenancy the agent or lessor must provide information about any tenancy databases they use. If they become aware the tenant is listed on a tenancy database they must give the tenant information about the listing.

If requested in writing the listing agent, lessor or database operator must provide a copy of the listing to the tenant within 14 days (they can charge tenants a reasonable fee).

Tenants can dispute listings that are unlawful, incorrect, ambiguous, out of date, or unjust. Tenants can write to the listing agent, lessor or database operator and ask them to amend or remove a listing.

Tenants can apply to the Tribunal to dispute a proposed listing or an existing database listing. The Tribunal can order an agent, lessor or tenancy database operator, to amend or remove a listing.

Listing entities may face penalty fines if they knowingly list a tenant for an unlawful reason, or if they fail to comply with a Tribunal order to amend or remove a listing.

What happens when I apply for a tenancy?

When you apply for a rental property, the agent or lessor must obtain your consent to check your rental references. The tenancy application you sign usually includes permission to check your rental history on a tenancy database. If you do not give permission to check your rental history your tenancy application is unlikely to be accepted.

Agents and lessors may be members of one or more tenancy databases. When you apply for a tenancy the agent or lessor must advise you which tenancy databases they use, the reasons they use the databases, and how you can contact the database operator.  This information may form part of the rental application.

When you apply for a tenancy the agent or lessor must notify you if they become aware you are listed on a tenancy database. You must be given information about who listed you and how you can dispute this listing.

What is on a tenancy database listing?

If your name appears on a tenancy database, this could indicate a tenancy default is alleged by a listing entity. The tenancy database listing should include your name, the listing date and contact details for the agent or lessor that made the listing.

If an agent or lessor checks a tenancy database to see if your name is listed this may be recorded on an ‘enquiries’ list. This is simply a record that someone has checked your rental history and will not usually affect your ability to rent. This is not the same as being listed on a tenancy database.

Some tenancy databases allow members to see checks done by other members and may also offer members a notification service to alert agents when tenants apply for new properties.

How will I know if I am listed?

When you apply for a rental property the agent or lessor must let you know if you are listed on a tenancy database. They have seven days to give you a written notice with details of who listed you, the database you are listed on, and information about how you can dispute the listing.

When a tenancy ends your lessor or agent must notify you if they propose to list you on a tenancy database. They must take reasonable steps to give you written notice of the proposed listing. They must give you 14 days to object to the listing. If you move out and do not provide forwarding details you may not receive notice of a proposed listing.

Can I get a copy of my listing?

You can write to the listing agent, lessor, or database operator and request a copy of your listing. They must give you a copy within 14 days. They can charge a fee for this information but this fee must not be excessive.

Who can be listed?

The Act sets out lawful reasons a tenant can be listed on a tenancy database.

You can be listed on a tenancy database if:

  • The tenancy has ended; and
  • You are named as a tenant on the tenancy agreement (other occupants, visitors or children cannot be listed as they were not on the agreement); and
  • There is a lawful reason for the listing under the Act.

 

Before you are listed, the agent or lessor must:

  • Take all reasonable steps to notify you of a proposed listing on a tenancy database; and
  • Give you at least 14 days to object to the proposed listing; and
  • Consider any submissions you make regarding the proposed listing.

What are lawful reasons for a listing?

There are three lawful reasons why an agent or lessor can list a tenant on a database.

1. Money owed above the bond amount

You can be listed if you left a tenancy and owe money for the tenancy in excess of the rental bond amount (if you did not pay a rental bond the amount must be greater than one week’s rent).

You must also have:

  • Received a Notice to Remedy Breach about rent owing which you did not comply with; or
  • Failed to pay money by the due date stated under a conciliation agreement or Tribunal order; or
  • Abandoned the premises.

2. Termination for objectionable behaviour

You can be listed if the Tribunal made an order to end your tenancy due to your objectionable behaviour.

3. Termination for repeated breaches

You can be listed if the Tribunal made an order to end your tenancy due to your repeated breaches.

Under the Act it is an offence for a lessor, agent or tenancy database operator, to list information on a tenancy database that they know is unlawful. This could result in an RTA investigation and penalty fine.

How long can I be listed?

Three years is the maximum length of time personal information can be held on a tenancy database. After three years the listing must be removed. Database operators can be fined for failing to remove a listing that is more than three years old.

If your listing is not automatically removed after three years you can write to the listing agent, lessor or database operator to advise the listing is out of date and must be removed. If the listing is not removed you can apply to the Tribunal for an order.

If you write to the listing agent or lessor they have seven days to remove the listing, or give written notice to the database operator to remove the listing.

If a database operator is given written notice they must remove the listing within 14 days.

What listings can be removed?

A tenant can dispute a listing and have the listing amended or removed if the listing is:

  • not for a lawful reason (such as money owing over the bond or termination for objectionable behaviour or repeated breaches); or
  • inaccurate, incomplete, ambiguous, or out of date; or
  • unjust – given the circumstances of the listing and the hardship now experienced by the tenant.

Examples of unlawful listings

  • A person who lived in the premises is listed, but they were not named on the tenancy agreement.
  • A tenant left owing money but the rental bond was enough to cover the amount owed.
  • A tenant paid money owed in accordance with a conciliation agreement or Tribunal order.

Examples of out of date listings

  • A tenant owed money for a former tenancy, but paid the debt within 3 months after it became due.
  • A tenant is listed after the Tribunal terminated the tenancy, but the matter was reopened or appealed and the termination order was set aside.

Example of an inaccurate listing

  • A tenant owed a debt for the tenancy but paid the money more than 3 months after it became due.

Examples of unjust listings

  • A tenant was in hospital and fell behind with the rent.
  • A tenant left a property to escape from domestic violence and a remaining tenant was responsible for damage after they left.

 

Steps to remove a listing

1. Find out about the listing

Contact the listing agent, lessor, or database operator, to request a copy of your listing.  Your letter can also ask for copies of any evidence they are relying on to justify the listing. It is best to do this in writing. Date the letter and keep a copy.

If you make a written request they must provide a copy of your listing within 14 days. They can charge you a fee to provide this information. This fee must be reasonable.

If a listing agent is no longer in business you will need to contact the database operator to access information. In Queensland many real estate agents use the TICA database. You can contact TICA to request a copy of your listing. Contact details for TICA are listed in this factsheet.

2. Write to the agent or lessor to remove the listing

You can write to the agent or lessor to request they amend or remove a listing if it does not comply with the Act or they do not have evidence to justify the listing. Make sure you keep a copy of this letter.

If the listing agent or lessor agrees the listing is inaccurate, incomplete, ambiguous or out of date, they have seven days to amend or remove the listing, or write to the database operator to request the listing be amended or removed. If they write to the database operator they must keep a copy of this letter for at least one year.

If a database operator is given written notice that a listing is inaccurate, incomplete, ambiguous, or out- of date they must amend or remove the listing within 14 days.

3. Seek RTA dispute resolution assistance

You may apply to the RTA Dispute Resolution Service for conciliation to resolve your dispute regarding a tenancy database listing. This is an optional step.

4. Apply to the Tribunal to remove the listing

If the agent, lessor, or database operator refuses to remove or amend a listing, you can apply to the Tribunal for an urgent hearing. You can request an order that your listing is removed from the database.

How do I apply to the Tribunal to dispute a listing?

You can apply to the Queensland Civil and Administrative Tribunal (QCAT) for a tenancy hearing to dispute a proposed tenancy database listing, or seek removal of an existing listing.  All tenancy database applications are defined as urgent QCAT applications.

You can apply to the Tribunal under the following sections of the Act:

Proposed listing (section 462)

If you are notified about a proposed listing on a tenancy database and you believe the listing would be unlawful or unjust, you can apply to the Tribunal for an order that the listing not be made.

Breach of listing rules (section 460)

If a listing is not for a lawful reason set out in the Act, you can apply to the Tribunal to request an order that the listing be removed. You must apply to the Tribunal within six months of becoming aware of your listing.

Inaccurate, incomplete, ambiguous, out of date or unjust listing (section 461)

If the listing is inaccurate, incomplete, ambiguous, out of date, or unjust in the circumstances, you can seek an order that the listing be amended or removed. You will need evidence to support your case. There is no time limit to apply to the Tribunal to dispute these kinds of listings.

When considering your application the Tribunal may take into account:

  • The reason for the listing.
  • Whether you were responsible for the acts or omissions that led to the listing.
  • The adverse consequences that you have suffered, or are likely to suffer as a result of the listing, such as homelessness, and
  • Any other relevant matter (such as the circumstances that led to the listing).

 

To apply to the Tribunal fill in a QCAT form 2 Application for Minor Civil Dispute – Residential Tenancy Dispute. This form is available from your local courthouse or the QCAT website at www.qcat.qld.gov.au.

On the application form, you are the applicant. Your first respondent is the agent or lessor who listed you. Include the database operator (eg: TICA) as your second respondent. Naming both parties ensures the Tribunal will notify them of any order to remove your listing.

Your QCAT application must state the section of the Act you are applying under and the orders you want the Tribunal to make. You will need to attach a copy of your listing and evidence to support your request for removal; for example evidence showing a debt has been paid, or a statement explaining why the listing is unlawful or unjust.

Lodge copies of your completed QCAT Form 2 application at the Magistrates Court closest to the rental premises, or at the QCAT Registry at 259 Queen Street Brisbane (or mail to GPO Box 1639 Brisbane 4001).

You will need to pay a filing fee. If you are low income you can use a QCAT Form 49 to request a waiver of the fee due to financial hardship. If you pay a filing fee your application can request reimbursement from the respondent, especially if the listing was unlawful.

QCAT will send you a letter to notify you of the date, time and location of your hearing. QCAT will also send a notice of the hearing and copies of your application to the respondents.

Protection for victims of domestic violence

Victims of domestic and family violence can apply to QCAT for an order not to be listed on a tenancy database, or can request a listing be removed. This applies if the listing relates to a breach of the tenancy agreement arising from an act of domestic or family violence.

However, a tenant under the agreement, who was a perpetrator of domestic or family violence, can be listed on a tenancy database if there are grounds for the listing.

A co-tenant applying to the Tribunal under s245 Injury to domestic associate can request an order they not be listed. Under s461 tenants can apply to dispute an existing listing if it is unjust due to the circumstances.

Enforcing a tribunal order

If the listing agent, lessor or database operator, fails to comply with a Tribunal order to remove a listing it is a serious offence. You can make a complaint to the RTA who can investigate the matter and seek penalty fines. You can also apply to the court for an enforcement order for the Tribunal decision.

How to contact TICA

In Queensland, many agents and lessors are members of TICA.  If you are listed on TICA you can write to TICA to request a copy of your database listing, or dispute a listing that does not meet the requirements of the Act.

TICA contact details

TICA
PO Box 120 Concord NSW 2137
Website: www.tica.com.au
Telephone: 190 222 0346 (cost $5.45 per minute; more from mobiles).

Contact TICA to get a copy of your listing

If you make a written request for a copy of your database listing TICA must provide this information to you within 14 days. TICA can charge you an access fee. This fee must be reasonable.

Visit the TICA website at www.tica.com.au for details of costs and how to request information.

It is best to mail or fax your request to TICA. A telephone enquiry can be very costly and may not provide you with a copy of your listing, which you will need if you have to apply to the Tribunal.

Time limits

When disputing a listing be aware that time limits may apply. To dispute an unlawful listing under section 460 you must apply to the Tribunal within six months of becoming aware of your listing.

There is no time limit to apply to the Tribunal under section 461 to dispute an inaccurate, incomplete, ambiguous, out of date or unjust listing, or a listing that is causing you extreme hardship.