Applying for a tenancy

When you apply for a tenancy you may be asked to provide a lot of personal information, especially if you apply through an agent: it is not unusual for agents to ask for copies of bank statements, payslips, passport and licence numbers and photographs.

There are no rules in the Residential Tenancies Act 2010(the RT Act 2010) about what information agents and landlords can and cannot ask for in their application forms. Some requests for information, however, may be discriminatory under anti-discrimination legislation (see below).

Aside from discriminatory requests for information, if you object to giving any information asked of you, you are free to withhold it, and you should tell the agent or landlord why. Some agents might respect your objection and consider your application; others, however, will simply reject your objection – and application – out of hand.

As part of your application, you may also be asked for consent to the agent disclosing your personal information to a residential tenancy database operator (see below for more on residential tenancy databases). As with agents’ requests for personal information, you can withhold your consent, but you should be prepared for the agent to reject your application.

Tip

Attach a cover letter to your application. Say something nice about the property, and highlight a few things that make you a good tenant.

Rent auctions

Sometimes, when a property is highly sought after, one or more of the applicants might offer a higher rent than advertised. The agent might then ask the other applicants if they are prepared to match the higher offer, or go higher still. This process is known colloquially as a ‘rent auction’.

A rent auction is not, of itself, unlawful. You are free to offer to pay a higher rent than advertised, and landlords and agents are allowed to inform you if they receive a higher offer from another applicant. However, you should be mindful that sometimes landlords and agents deliberately set out to start a rent auction. In particular, beware of advertisements that give a range of rents for a single property (for example, ‘$400-500 per week’): you can assume that the agent really wants the higher figure, and that the main purpose of the lower figure is to attract more applicants to the property and so give the impression that more people are interested than might actually be the case. If a landlord or agent advertises a rent amount that they are not actually interested in accepting, or falsely represents that a higher offer has been made by another applicant, they may be in breach of their obligation under section 26 of the RT Act 2010, and an agent may be in breach of their obligations under the Property, Stock and Business Agents Act 2002(NSW) (the PSBA Act 2002). You may also be able to seek a remedy under the Australian Consumer Law (see the discussion of the Australian Consumer Law in the section on ‘Landlords representations and disclosure’).

Discrimination

Generally it is unlawful for agents and landlords to discriminate in the provision of rental housing on the grounds of your race, age, disability, sex, sexual orientation, marital status or pregnancy. Discrimination may be direct (for example, declining your application because you have a disability) or indirect (for example, providing accommodation that is configured in such a way that a person with a disability cannot live in it).

If a landlord or agent declines your application for a tenancy, or otherwise treats you less favourably, on any of these grounds, you can make a complaint to the Anti-Discrimination Board of NSW (ADB) or the Australian Human Rights Commission (AHRC). The ADB administers the Anti-Discrimination Act 1977(NSW); the AHRC administers a suite of Commonwealth discrimination legislation.

Each of these agencies investigates complaints of discrimination and attempts to resolve complaints through conciliation. Conciliated outcomes can include the respondent landlord or agent making an apology, or undertaking to do something, or paying compensation to you. Complaints that do not resolve through conciliation may go on to the Administrative Decisions Tribunal (in the case of complaints under the Anti-Discrimination Act 1977(NSW)) or the Federal Court (in the case of complaints under Commonwealth legislation) for determination.

There are some exemptions and exceptions in the legislation that mean not all discrimination is unlawful.

For example, the prohibitions on racial, sex and disability discrimination do not apply where the landlord, or a near relative of the landlord, lives at the premises and the premises accommodate not more than a certain number of persons.2

Under both the Sex Discrimination Act 1984(Cth), section 23(3) and the Disability Discrimination Act 1992(Cth), section 25(3), the number of persons is three; there is no number under the Racial Discrimination Act 1975(Cth), section 12(3); under the Anti-Discrimination Act 1977(NSW), the number in relation to race, sex and disability is six, sections 20(3), 34(3) and 49N(3) respectively.

Discrimination on the ground of disability may be lawful where the landlord would otherwise suffer ‘unjustifiable hardship’ (Disability Discrimination Act 1992(Cth), section 21B; Anti-Discrimination Act 1977(NSW), section 49N(4)): for example, if reconfiguring the premises to accommodate a person with a disability meant the landlord would have to make alterations that the landlord could not afford.

Note also that it is quite lawful for agents and landlords to discriminate against you because you have a low income, are unemployed, or work at any particular sort of job.

State and Commonwealth discrimination legislation has a lot in common, but (as the examples above indicate) there are some differences, so you should seek advice from the ADB, the AHRC or an advocate as to where to take your complaint.

Residential tenancy databases

Many agents and landlords use residential tenancy databases – sometimes called ‘bad tenant databases’ or ‘tenancy blacklists’ – when they check applications for tenancies. Residential tenancy databases compile listings of personal information provided by agents about tenants and sell agents access to this information. The major database operators are TICA, TRA, NTD and Barclays; each is a private company. Residential tenancy databases are in some respects similar to credit reference databases (and the major credit reference agency, Veda Advantage, owns the NTD database), but residential tenancy databases are separate from credit reference databases and subject to different regulations – including the RT Act 2010.

For more information on how you might get listed on a residential tenancy database, see the section on Residential tenancies database; the following is about how you can find out if you are listed, and what you can do about it if you are.

If an agent or landlord uses a residential tenancy database to check your application and finds that you are listed, they must inform you in writing of the listed information and:

  • The name of the agent or landlord who listed you;
  • The name of the operator of the residential tenancy database and how to contact it; and
  • How you can get a listing removed or amended (RT Act 2010 section 211).

If you think the listed information is wrong, contact the agent or landlord who listed you. If the listed information is inaccurate, incomplete or ambiguous, they must have it amended or removed; if the information is out-of-date, they must have it removed (section 214). Information is out-of-date if it is about:

  • An amount of money owed – and you paid the amount within three months of it becoming due; or
  • A termination order – and the order has been suspended, or it lapsed unenforced, or you and the landlord entered into a new residential tenancy agreement (section 209).

Additionally, all information listed on a database must be removed after it has been listed for three years (section 218).

If the agent or landlord or database operator does not remove or amend the listed information, you can apply to the Tribunal to have the dispute resolved. You can also apply if you think the listed information is unjust (section 217(2)(b)). The Tribunal can order that listed information be amended or removed (section 217(3)), and can order compensation if you have suffered loss as a result of inaccurate, ambiguous or out-of-date information being listed (section 187(2)(c)).

This is new

The RT Act 1987 did not deal with residential tenancy databases. Previously, agents’ use of residential tenancy database operators was subject to a rule of conduct under the PSBA Reg 2003, but that rule of conduct (repealed on commencement of the act) did not apply to landlords or tenant database operators, nor did it provide for dispute resolution. Residential tenancy data- bases were (and continue to be) subject to the Privacy Act 1988(Cth), which sets out the National Privacy Principles (NPPs) and provides for investigation of complaints by the Office of the Australian Information Commissioner (OAIC). The NPPs make provisions in relation to access to information and accuracy that are similar to those of the Act, but they do not prescribe circumstances in which you may be listed or timeframes for listings, and the OAIC’s complaints process can take a long time.

What should I do if I suspect I’ve been listed?

You have a few options:

  • If you suspect a particular agent or landlord has listed you, ask them – if they have done so, they are obliged to tell you and give you a copy of the information listed.
  • Go and apply for a tenancy – if the agent or landlord finds that you’re listed, they must tell you.
  • Ask the tenancy database operators if you are listed. Beware forms of communication that involve paying a fee, particularly TICA’s 1900 phone number, for which you will be charged $5.45 minute (and if you get into an argument about a listing, you may be on the phone longer than you intended).

For more on how you might get listed, see the section on Residential tenancy databases.

Holding fees

When you’ve applied for a tenancy, you might think about offering to pay – or the agent or landlord might ask you to pay – a holding fee. An agent or landlord can accept a holding fee only if they have approved your application and are offering you the tenancy. The amount of the holding fee is limited to one week’s rent (section 24).

If you pay a holding fee, the agent or landlord cannot offer the tenancy to anyone else for seven days (or longer, if that’s what is agreed). If you decide to accept the offer of the tenancy, the holding fee will go to the first week’s rent. If you decline the offer, the landlord may keep the holding fee.

This is changed

The provisions for holding fees replace those for ‘reservation fees’, which agents and landlords could accept without having offered you the tenancy. This meant that, in the past, you might apply for a tenancy and pay a reservation fee, only for the landlord or agent to decline your application anyway.