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Tenant screening and blacklists - what can they list and what can they ask? 

Too many tenants are afraid of being blacklisted, but there are rules about when and what rental agents and landlords can list.  

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Last updated: 09 March 2020

For many renters, the personal information rental agencies ask for as part of the screening process can seem a bit much. 

Our research bears that out. 

In a nationally representative study conducted by CHOICE, National Shelter, and the National Association of Tenant Organisations, 60% of renters said the amount of information they were required to provide on their rental applications was excessive, and 46% said it was unreasonable. 

So just what information can – and does – an agent use to screen tenants?

What is a tenant blacklist or database?

One questionable resource used by real estate agents to screen potential tenants is what's known as a tenancy database, or 'blacklist'. 

These databases store information about your tenancy history and are privately owned, and there are a number of them out there (three of the biggest are the National Tenancy Database, Tica, and Trading Reference Australia). 

All tenancy databases are covered by the Privacy Act, regardless of how much revenue they earn.

In most states and territories there are strict rules around the information that can be stored

"Most people aren't listed," Yaelle Caspi told us, speaking in her capacity as a policy officer at the Tenants Union of Victoria. 

But for those who are, the consequences can be dire. 

"It can pretty much lock people out of the private rental market," she says. "In some cases listings result in tenants having to move interstate, move into unsuitable accommodation like caravan parks, or even homelessness." 

Caspi says some agents play on a tenant's lack of knowledge about blacklisting

In most states and territories there are strict rules around the information that can be stored on these databases. 

Nevertheless, 50% of renters are fearful of being 'blacklisted' according to CHOICE research, though only three percent of the renters we surveyed had been put on such a list. 

Caspi says some agents play on a tenant's lack of knowledge about blacklisting, and may threaten to list tenants for offences that shouldn't be recorded, such as asking for repairs.

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Tenants are often worried about being blacklisted by agents and landlords for asking for repairs.

How can I end up on a tenant blacklist?

With the notable exception of the Northern Territory, which has minimal rules relating to tenancy databases, you can only be listed on a blacklist:

  • for a maximum of three years
  • once a lease has ended (rather than during it), and
  • for one of the following two reasons:
    • you owe more money than the bond will cover (for example, in rental arrears), or
    • a tribunal has ruled to terminate the lease as a result of a breach.

What's a breach worthy of blacklisting? 

The guidance varies slightly from state to state, but it needs to be a serious breach.

In Tasmania, for example, you can only be listed if there's substantial damage to the property, or if a tenant causes physical harm to another person. 

If a real estate agent intends to list you on a database, they need to let you know so you have a chance to dispute it

Objectionable behaviour or repeated breaches of the lease (as ruled by a tribunal) can be listed in Queensland, while in Victoria breaches such as malicious damage to the property, endangering a neighbour's safety, failing to comply with a tribunal order, using the property for illegal purposes or sub-letting the property without the consent of the landlord or estate agent are sufficient reasons to get a tenant listed.

What are the real estate agent's responsibilities?

If a real estate agent:

  • intends to list you on a tenant blacklist, they need to let you know so you have a chance to dispute it. 
  • finds you on a blacklist, they're required to notify you. 

They also need to let you know which databases – if any – they intend to search when you apply for a property (except in NSW and the NT).

What information can an agent collect?

In an earlier interview with Malcolm Gunning, then president of the Real Estate Institute of Australia (REIA), we were told that an agent or landlord is looking for two things when screening a tenant: ability to pay the rent, and a good track record of looking after a property. 

To dig up such information, landlords and agents go to sources such as past rental ledgers, references from previous agents and tenancy database reports (more on these later). 

They might also take a look on social media sites such as Facebook.  

But sometimes tenants are also asked to divulge more personal details, and lots of them. 

There aren't any specific rules outlining what information an agent can or can't collect

We've come across rental applications in which agents have requested copies of credit reports and criminal record checks, and asked whether the tenant has ever been involved in a legal dispute with a landlord. 

There aren't any specific rules outlining what information an agent can or can't collect, and REIA doesn't have a policy on what is and isn't acceptable. 

According to federal legislation, it all comes down to what's "reasonable" – as defined by the landlord or agent, of course. 

The Office of the Australian Information Commissioner (OAIC) says real estate agents covered by the Privacy Act (those with annual revenues over $3 million) can only collect personal information that's "reasonably necessary for one of its functions or activities". 

With rental properties in short supply in many places around the country, agents and landlords have the upper hand

And it needs to be collected by "lawful" and "fair" means and "not in an unreasonably intrusive way". 

So there are rules against an agent accessing a prospective tenant's credit report or criminal record in cases where it's not strictly necessary, but there are no rules against agents asking for such things. 

And with rental properties in short supply in many places around the country, agents and landlords have the upper hand. 

If you refuse to answer invasive questions on the grounds of privacy, they may just pass you over in favour of another prospective tenant. 

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Real estate agents have to let you know if they intend to list you on a tenant database, and tell you if they find you on one.

How to find out if you're on a blacklist

Under the Australian Privacy Principles, you're entitled to access the information these databases hold on you – but not for free.

Tenancy databases usually charge a fee to access your tenancy file, although the fee can't be "excessive". 

"For example, a fee may be charged to cover the costs of locating and delivering the information to the individual concerned," an OAIC spokesperson tells CHOICE.

We decided to check for ourselves how easy it is to access our own information, and what it will cost.

Here's how we went with each of the three services.

National Tenancy Database (owned by Equifax)

Its website says you can email info@ntd.net.au for a free copy of your file, which should arrive within 10 working days of your details being verified – it took a reminder email from us and 13 working days to receive our report. 

Alternatively, you can pay $38.50 to receive the file instantly through its partner, tenancycheck.com.au (which we also did). 

The tenancycheck.com.au report included checks of a number of public record data sources in addition to its tenancy database. However, we noticed that this report was different to the sample report for agents available on the National Tenancy Database site, which includes extra information returned from a search of its "enquiries" database (see below for more on this).

Tica

This service provides access to your online tenancy file for one year for $55 (or by mail for $19.80). The report included a search of the tenancy database and its "enquiries" database.

Trading Reference Australia

Its website says it'll provide a free copy of your file within 21 working days (after 28 days and a reminder email it still hadn't arrived), or you can obtain it instantly for $22 (which we also did). 

The online report only had information from the tenancy database. Its online application form also forced us to provide a phone number and employer details, which made the process feel more like an information gathering exercise on their part rather than the collecting of necessary information for the search.

Other information included in a tenant report

Even if you're not on a blacklist, a real estate agent can still find information on you in a tenancy report. 

So what exactly is in these reports? 

Publicly available information

In addition to the search of their tenancy database, some of the database services listed above also claim to provide information from a range of publicly available data sources such as:

  • court judgments, writs and summonses
  • the Australian Financial Security Authority bankruptcy register
  • any available information on your visa status (if applicable)
  • ASIC directorship databases. 

An Equifax spokesperson told us that this information is used to "help landlords and real estate agents conduct real-time identity verification checks on potential tenants". 

These checks of public data sources may include tenancy tribunal decisions that are published in searchable online databases; for example, a Tica brochure advertised "immediate access to NCAT, VCAT and QCAT hearings". 

However, most tenancy tribunal decisions aren't published publicly – for example, in Victoria, published decisions make up as little as one percent of cases heard at VCAT (Victorian Civil and Administrative Tribunal). 

Access to unpublished cases can still be granted, although the rules vary across states and territories. 

While VCAT doesn't provide information on unpublished decisions to tenancy databases, in Queensland it's possible to do a paid online search of all tenancy cases with as little as a single name.

Enquiries databases

Equifax and Tica also have "enquiries" databases they search when compiling their tenancy reports. These databases, which appear to fall outside of the tenancy database regulations, show when an agent has searched for a tenant in the tenancy database, and provide information such as the date the search was conducted and the agency's name. 

Tica says its enquiries database "contains records of all applicants checked within the Tica system" (over six million records at last count) and that it advises agents where applicants have previously applied for rentals. 

Enquiries databases can provide an agent or landlord with enough information to trace a tenant's rental history, even if they haven't been listed on a database

This function has the potential to provide an agent or landlord with enough information to trace a tenant's rental history, even if they haven't been listed on a database. 

For example, the report we obtained through Tica contained a record of a rental application that was older than three years. 

Equifax told us its enquiries records don't go back further than three years.

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If you end up on a tenant blacklist, you can only be listed for three years, and you have a right to be removed if it's unjustified.

What to do if you're on a tenant blacklist

If you've discovered you're on a tenant blacklist, these are the basic principles that apply.

  • All listings must be removed after three years. If you think you've been wrongly listed, or if the listing is 'out of date' or 'inaccurate', you can apply to have it removed or amended. 
  • A listing should be removed if you repay your debts to the landlord within three months. 
  • If it takes longer to repay, the listing may remain but it needs to be updated to reflect the repayments. 
  • If you think a listing is unjust, you should first ask the landlord or agent to change or remove it. 
  • If you can't resolve the issue with them, you can apply to your relevant state tribunal to have the listing changed or removed. 

We care about accuracy. See something that's not quite right in this article? Let us know or read more about fact checking at CHOICE.