Am I going to be put on a blacklist?
Have you ever applied for a rental property and been asked for overly personal information? For many renters, the information obtained as part of the screening process is seen as over the top. In fact, according to a recent nationally representative study produced by CHOICE, National Shelter, and the National Association of Tenant Organisations, 60% of renters thought the amount of information they were required to provide on their rental applications was excessive and 46% thought it was unreasonable.
So just what information can – and does – an agent use to screen tenants?
In this article we look at:
What information can an agent collect from you when you apply for a rental property?
Malcolm Gunning, president of the Real Estate Institute of Australia (REIA), says an agent or landlord is looking for two things when screening a tenant: ability to pay the rent, and a track record in looking after a property. To do this, they'll likely use sources such as past rental ledgers, references from previous agents and tenancy database reports. They might also take a look on social media sites such as Facebook, says Gunning.
However, sometimes tenants are also asked for more personal details. For example, we've come across rental application forms where 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 over a tenancy.
There aren't any specific rules outlining exactly what information an agent can or can't collect and REIA doesn't have a policy on what is and isn't acceptable. In short, it all comes down to what's "reasonable" for the task. The Office of the Australian Information Commissioner (OAIC) says that real estate agents covered by the Privacy Act (that's those with revenues over $3 million) can only collect personal information that's "reasonably necessary for one of its functions or activities".
As for what's "reasonable", well, there's no specific guidance, although it needs to be collected by "lawful" and "fair" means and "not in an unreasonably intrusive way". This means that while there are rules which prevent an agent from accessing your credit report or criminal record, there are no rules which prevent them from asking for it.
What is a tenancy blacklist or database?
A key resource used by estate agents to screen potential tenants is what's known as a tenancy database, or 'blacklist'. These databases are privately owned, and a number of them exist (some of the bigger ones include the National Tenancy Database, Tica, and Trading Reference Australia). They store information relating to a person's tenancy history and agents often use them as part of the tenant screening process. All tenancy databases are covered by the Privacy Act, regardless of how much revenue they earn.
"Most people aren't listed," says Yaelle Caspi, policy officer at the Tenants Union of Victoria. However for those that 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."
However, in most states and territories there are strict rules around what information can be stored on these databases. Nevertheless, fear of being on them is widespread, with 50% of renters fearful of being 'blacklisted', even though only three percent had reported this happening to them, according to our research. Caspi says some agents play on a tenant's lack of knowledge in relation to blacklisting, and may threaten to list tenants for offences not worthy of listing, such as asking for repairs.
How you get on on a 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.
So what constitutes a breach worthy of blacklisting? The guidance varies slightly from state to state, but it needs to be serious. For example, in Tasmania, a breach listing needs to be the result of serious damage (or potential damage) to the property, or due to a tenant causing physical harm to another person.
Lease breaches, such as 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.
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, and likewise, if they find you on a database, 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).
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How to find out if you're on a blacklist
If these databases can store your personal information, it only seems fair that you should be able to check for yourself what information they're keeping on you. Under the Australian Privacy Principles, you're entitled to access the data they hold on you. However, unlike your credit report, which you can access for free, tenancy databases are able to 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 told CHOICE.
We decided to check for ourselves just how easy it is to access our own information, and what costs are involved.
What we found:
- National Tenancy Database (owned by Equifax): Its website says you can email firstname.lastname@example.org for a free copy of your file, which should arrive within 10 working days of your details being verified (it took a reminder email 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: 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 tenancy reports
Even if you're not on a 'blacklist', it doesn't mean a real estate agent won't turn up any information on you in a tenancy report. Given the restrictions on tenancy databases, this surprised us. So what exactly is contained in these reports?
Publicly available information
In addition to the search of their tenancy database, some of these services also claim to provide information from a range of publicly available data sources such as court judgments, writs and summonses; a search of the Australian Financial Security Authority bankruptcy register; information on your visa status (if applicable); and a search of 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 advertises "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 somewhat across states and territories. While VCAT doesn't provide information on unpublished decisions to tenancy databases, in Queensland, for example, for a fee it's possible to do an online search of all tenancy cases with as little as a single name.
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) and that it advises agents where applicants have previously applied for rentals.
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 which was older than three years. Equifax has told us its enquiries records don't go back further than three years.
What to do if you find yourself on a blacklist
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. For example, the listing needs to be removed if you repay your debts to the landlord within three months, or, if it takes longer to repay, the listing may remain but it needs to be updated to reflect the repayments.
If you think the listing is unjust, you should first speak to the landlord or agent and ask them to amend it. If you can't resolve the issue you can apply to your relevant state tribunal to have the listing amended or removed.