What is a residential tenancy database or ‘blacklisting’?
Renter databases are operated by private companies who collect personal information about renters to assist residential rental providers (RRPs) and their agents in deciding whether a residential rental agreement should be entered into with a person. Renter databases are still sometimes referred to as tenant databases as this was the terminology previously used within the Residential Tenancies Act 1997 (RTA). These databases are also sometimes referred to as ‘blacklists’ or’ bad renter databases’.
Part 10A of the RTA provides for renter information to be entered onto a residential tenancy database under some circumstances and protects victims of family violence from being subjected to adverse entries into the database.
Protections for listing on residential tenancy databases also exist for rooming house residents and caravan park residents.
When can a person be listed on a database?
An RRP or database operator can only list a renter to a residential rental agreement on a database if the agreement has ended and the renter was in breach if:
the renter owes the RRP an amount that is more than the bond: s 439E(1)(c)(i); or
Under s 439E(1)(b), an RRP or database operator can only list a person’s name if they breached the tenancy on basis of damage (s 91ZI), danger (s 91ZJ), non-payment of rent (s 91ZM), failure to comply with Tribunal order (s 91ZO), use of premises for illegal purpose (s 91ZQ), and assignment or sub-letting without consent (s 91ZV). It is also necessary that because of the breach that the person owes the RRP more than the bond or the Tribunal made a possession order (s 439E(1)(b).
A RRP or database operator can list a rooming house resident or caravan park resident on similar grounds.
The personal information listed must relate only to the breach and be accurate, complete and unambiguous (s 439E(1)(d)) and must indicate the nature of the breach (s 439E(2)).
An RRP or database operator who lists a renter on a database must if requested in writing by the renter, provide to the person a copy of the information within 14 days: s 439I.
Restrictions on listings
Renter must be informed
A RRP or database operator cannot make a listing unless:
A person has been provided, without fee, a copy of information to be listed or reasonable steps were taken to disclose that information to the renter: s 439F(1).
A person has been given at least 14 days to review the information and make a submission in relation to the listing: s 439F(2).
The RRP or database operator has considered any submission made: s 439F(3).
Family Violence
A listing cannot be made if the renter has objected to listing the information because it relates to an act or circumstance of personal or family violence: s 439F(7). See Family Violence Provisions for further information
Inaccurate or out of date listings
A listing cannot be kept on a register for longer than 3 years or unless required to be removed under the National Privacy Principles: s 439K.
In Parkhill v Tica Default Tenancy Control Pty Ltd (Residential Tenancies), the Tribunal was critical of the database operator in finding that the listing should have been removed as it was more than 3 years since made. The Tribunal made further orders for application fee costs against the database operator on the grounds of absence of response to a request by the renter to remove the listing.
A RRP that becomes aware that a listing is inaccurate, incomplete, ambiguous, out of date or relates to family violence or personal violence must give notice to the database operator within 7 days to amend/correct or remove the listing as necessary: s 439G. This commonly occurs where a renter has paid rental arrears more than 3 months after the amount becomes due, in this case the RRP must give notice to the database operator to amend the listing.
Section 439D provides that an RRP when considering an application to enter into a residential rental agreement finds that a prospective renter is listed in a database, the RRP must as soon as possible but within 7 days notify the person in writing providing information concerning:
the name of the database used; and
that the information about the person is in the database; and
the name of the person(s) who listed the information; and
provide information about how the prospective renter can remove or amend the information under Part 10A of the RTA.
Removing or amending listings
A person can apply to VCAT for an order removing, amending and/or prohibiting the making of listing, this applies also to:
a person who is a victim-survivor of family violence or personal violence: s 439L(2A);s 439M(1A)
where VCAT is satisfied that the persons safety has been compromised because of the listing: s 439M(1B), s 439L(2B)
where VCAT is satisfied that the listing is or would be unjust in all of the circumstances, having regard to reason the information is listed, the conduct of the renter and whether the listing would have a disproportionate impact on the ability of the renter to access future rental accommodation: s 439M(1C), s 439L(2C).
listings made in contravention of the listing requirements in s 439E or restrictions set in s 439F: s 439M(2)(b)
where an RRP has not provided in accordance with s 439G in respect of personal information in the residential tenancy that the RRP is aware is inaccurate, incomplete or ambiguous or out of date: s 439M(2)(c)
Where a database operator has not amended or removed personal information in a database in accordance with s 439H(2): s 439M(2)(d).
Such application can be made regardless of whether a listing was made prior to, on or after the commencement of Part 10A.
Where an application is brought by a renter for the removal of a listing, the burden of proof will rest on the applicant to produce sufficient evidence during the course of a hearing to support the application. In Armstrong v Goyal (Residential Tenancies) [2018] VCAT 1781 at [10-11]. The renter was unsuccessful in arguing they had never received any information about the listing from the rental provider.