Residential Tenancy Databases: Recommendations

National consistency

1. States and territories should work together to ensure a level of national consistency in the regulation of residential tenancy databases.

2. Pending introduction of a national framework, the Residential Tenancies Act 1997 should be amended to regulate the operation of residential tenancy databases in Victoria.

3. Residential tenancy databases should be defined in any new legislation to include databases:

• containing information about a person’s occupation of residential premises under a tenancy agreement; and

• established and operated in-house by real estate agents for the purpose of exchanging information about a person’s rental history with other parties; or

• established and operated by individuals, organisations or agencies on a commercial or not-for-profit basis as a service for landlords, property managers and/or real estate agents; or

• established and operated by any public or community organisation providing rental accommodation.

Procedure for making listings

4. Listings on residential tenancy databases should be limited to information about tenants who are parties to residential tenancy agreements.

5. The listing of a tenant on a residential tenancy database may only be made if VCAT has made an order against the tenant for breach of the Residential Tenancies Act and/or a tenancy agreement.

6. A listing may only relate to a breach of the Residential Tenancies Act and/or a tenancy agreement that has been the subject of an order by VCAT.

7. If a real estate agent or landlord is unable to locate the tenant, the agent/landlord should seek an order from VCAT before listing the tenant on a database.

8. A real estate agent should provide a copy of the VCAT order to the database operator when requesting that a new entry be made about a tenant.

9. Generic comments, such as ‘refer to agent’, should be prohibited on residential tenancy databases.

10. If the order made by VCAT specified a period of time in which the tenant must rectify the breach, a listing should not be able to be made until that period of time has elapsed.

11. If a tenant complies with the VCAT order within the time period specified in the order, a database operator should be prohibited from making a listing about the tenant in respect of that breach.

12. If a tenant does not comply with the VCAT order within the time specified in the order, the real estate agent requesting that a new entry be made should certify by statutory declaration that the tenant has not complied with the order.

13. Notices of default, VCAT applications and orders served on the tenant should be accompanied by a notice that an order made by VCAT may result in the tenant being listed on a residential tenancy database.

14. All tenancy agreements should also include a clause notifying the tenant of the conditions under which a listing on a database may occur.

Notification of searches

15. If a real estate agent conducts a search for a prospective tenant, there should be an obligation to advise the tenant of any information found.

16. A real estate agent must inform a prospective tenant of a listing and provide the tenant with a copy of the listing if the tenant’s application for a tenancy is refused on any grounds.

17. Failure of a real estate agent to comply with the above should result in civil penalties.

Accessibility of listings

18. If a tenant or prospective tenant seeks a copy of their listing from a database operator, the database operator must provide the copy:

• for minimal charge, if requested to be supplied urgently (within 48 hours);

• free of charge, if requested to be supplied more than 48 hours after the request; and

• only to the tenant in question or to his or her nominee.

19. An application form for access to information on residential tenancy databases should be readily available, uncomplicated and written in plain English.

Removal and correction of listings

20. A tenant or prospective tenant may apply to the database operator to have a residential tenancy listing removed where, for example:

• the listing is inaccurate and/or misleading;

• there has been compliance with tribunal orders and resolution of the dispute or rectification of the breach;

• the breach was beyond the control of the tenant and presents no current risk to prospective landlords.

21. If, on the application of a tenant based on the grounds above, the database operator refuses or fails to remove a listing, the tenant may make an application to VCAT and seek an order for compliance.

22. Failure of database operators to remove listings in the above contexts should result in civil penalties.

23. Legislation regulating the content of listings on residential tenancy databases should apply to listings made prior to its introduction.

Time limits on listings

24. Residential tenancy database listings should automatically expire after a fixed period of three years.

25. Civil penalties should apply to the database operator where residential tenancy listings are not removed within the stipulated period.

Compensation

26. If a database operator lists a tenant on a database where:

• no VCAT order has been made; or

• the period for compliance with the VCAT order has not elapsed; or

• a statutory declaration has not been received from the real estate agent regarding the tenant’s failure to comply with a VCAT order; or

• the listing remains in place more than three years after it was created, the database operator should be liable to pay to the tenant a nominal fee for each day that the unauthorised listing remains in place.

Penalties

27. There should be fines or other appropriate penalties for non-compliance of database operators with regulations.

28. Real estate agents who submit false and or misleading information to residential tenancy databases should be subject to fines and/or other appropriate penalties.

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