Residential tenancy databases are privately owned commercial databases containing information about individual tenants’ rental histories. These databases are subject to the provisions in Part 5A of the Residential Tenancies Act 1995 (SA).
Because personal information held on such databases can have serious consequences in determining whether a person can secure rental accommodation, they are now regulated to ensure information is accurate and complete.
The provisions also apply to interstate operators and a breach of them is an offence under the Residential Tenancies Act 1995 (SA) [s 99C].
A landlord (or their agent if they have one) must give written notice advising a tenant of the name of each residential tenancy database they usually use for assessing tenants. Prospective tenants must also be provided with contact details for the database operator. Failure to provide this information is an offence under section 99D of the Act with a maximum penalty of $5 000 (expiation fee: $315).
In addition, a landlord (or their agent) must provide an applicant with written notice of the actual database(s) they use within 7 days of accessing the database(s). They must provide the name of the database(s) in a written notice stating:
- that personal information about the applicant is in the database; and
- the name of each person who listed the personal information in the database; and
- how and in what circumstances the applicant can have personal information removed or amended.
[Residential Tenancies Act 1995 (SA) s 99E]
There are limitations on when personal information can be listed about a person. Information can only be listed where:
- a residential tenancy agreement has ended; AND
- the tenant breached the agreement; AND
- where the breach results in the person owing the landlord an amount that is more than the bond; OR the Tribunal has made an order termining the residential tenancy agreement; OR the Tribunal has not made an order under section 89A(4)(d) prohibiting the listing (see below Terminations based on domestic violence).
The personal information recorded must relate only to the breach and be accurate, complete and unambiguous [s 99F].
Landlords and agents are prohibited from listing personal information in a residential tenancy database unless they have given the person a copy of the information (without charge), or taken reasonable steps to disclose the information to the person. They must also provide them with 14 days to review the information and make submissions and a maximum penalty of $5 000 applies to any breach of this provision. If, however, the landlord or agent cannot locate the person after making reasonable enquiries then the landlord or agent will not be in breach [s 99G].
Landlords and agents have an obligation to ensure information is accurate, complete, current and unambiguous [s 99H].
Landlords and agents who list personal information about a person in a residential tenancy agreement must, if requested in writing by the person, give them a copy of the information within 14 days after the request is made [99J]. The same provision applies to a database operator if they receive a written request for a copy. Whilst a fee may be charged it must not be excessive.
As a general rule, personal information must not be kept for more than 3 years [s 99K].
The South Australian Civil and Administrative Tribunal (SACAT) may make orders to ensure compliance with these provisions [s 99L].
Terminations based on domestic violence
Where a breach of a residential tenancy agreement has occurred as a consequence of domestic violence SACAT can make an order prohibiting an applicant's personal information from being published in a residential tenancy database. When making such an order the Tribunal must be satisfied either that the applicant did not cause the breach, or that the breach was the result of an act of domestic abuse against the applicant [s 89A(4)(d)].
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