Sometimes it can be difficult getting a place because you don't fit the landlord's idea of who a 'good' tenant is. This section looks at a few of these situations and what you may be able to do if you have problems.
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YOUNG PEOPLE

In NSW it is possible for a person under the age of 18 years to sign a residential tenancy agreement. This is because the Minors (Property and Contracts) Act 1970 makes such a contract binding if it is to the benefit of the young person and they understood that it was legally binding when they agreed to it. However, if you and your friends are young, and on Centrelink benefits or receiving student assistance, you may find that the landlord/agent demands a parent or older person with a job to act as a guarantor. (A guarantor is a person who agrees to pay if you do not.)

Despite what the landlord says, it's actually illegal to ask for a guarantor for a residential lease in NSW. This means that even if a guarantee is given, it is worthless because it cannot be enforced. The best approach is to offer to supply referees (for example, a teacher, older person, or friend with a job) who can reassure your prospective landlord that you are a' responsible person'. A referee cannot be held liable if you don't pay the rent.
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CENTRELINK BENEFITS

If a prospective landlord/agent expresses doubts about your ability to pay the rent because you are on Centrelink benefits, you could argue that at least you are guaranteed a regular fortnightly income! Most landlords/ agents should realise that Centrelink payments, including rent assistance, are sufficient to cover a reasonable rent in a share house.
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DISCRIMINATION

If you believe that you have been refused a tenancy because of your race, religion, ethnicity, gender, sexuality, marital status, family status, disability or age, you can make a complaint the Anti–Discrimination Board (ADB) or the Human Rights and Equal Opportunity Commission (HREOC). You have six months to make a complaint to the ADB and 12 months to make a complaint to the HREOC.

Unfortunately, it is difficult to prove that the reason you failed to get a particular tenancy was due to discrimination, as landlords/agents do not have to provide reasons for rejecting applications.

Telephone the ADB or HREOC to get up to date advice about where to lodge a complaint and the length of time it will take to sort out the problem. Staff at the ADB can assist you to put your complaints in writing. You can also contact your local community legal centre (www.nswclc.org.au) for legal advice.
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BAD TENANCY RECORD

If a real estate agent tells you that your application for a tenancy has been rejected because of your 'bad tenancy record', it may be that your name is on a list held by a tenancy reference organisation. These are private companies which run data bases of 'bad tenants', for example, tenants who leave a place owing money for rent, but also tenants who may merely have been taken to the Tribunal for rent arrears - or have taken their landlord to the Tribunal! Landlords and real estate agents provide the names of tenants to these companies who then release the information to other landlords/agents for a fee.

There are two different sets of laws which give some rights to tenants: the Commonwealth Privacy Act and the Rules of Conduct for real estate agents.
Commonwealth Privacy Act 1988

From 21 December 2002, the Commonwealth Privacy Act 1988 has applied to tenant database operators. The Privacy Act provides some regulations and a complaints process.

The Privacy Act requires businesses to operate according to the National Privacy Principles (NPPs) set out in the Act. This means that tenant database operators must take reasonable steps to tell tenants:

• who they are and how to contact them

• why the information is being collected

• tell you to whom they will pass on personal information

• tell you any consequences of not providing information

• give you access to information about yourself

• correct any information that is not correct, complete or up to date – if you disagree with the information, they must make a note on the database that you dispute the information

• fees for getting information should not be excessive.
If you believe a database operator has breached the privacy principles, you can make a complaint to the Federal Privacy Commissioner. The Commissioner will investigate the complaint and take court action to stop the database operator from breaching the Privacy Act.


How do I know I am listed?

Most people find out they are listed when they find that their applications for a tenancy are constantly rejected. If you were put on a database before 21 December 2002, the tenant database operator does not have to inform you of the listing, or give you access to or correct the information, until the information is passed on to a database member, such as a real estate agent. If an agent has rejected your tenancy application, ask them if it is because you are on a database, and if so, what database. Real estate agents often have the name of the database operator in windows or on walls of their offices, or on their tenancy application forms. The Privacy Act requires database operators to take reasonable steps to inform you of your listing made after 21 December 2002. However, be cautious, as the Privacy Act does not require a database operator to try to inform you of a listing if you have been informed of the possibilities, purposes etc and consented in writing otherwise. The cunning database operator has provided the subscriber Real estate agents with application for tenancy forms that satisfy this principle.

You can write to the database operators to check if you are listed. If you are listed, ensure that your information is accurate, complete and up to date. The database operator must provide you with reasons if they deny you access or refuse to correct information.

Some tenant database operators invite tenants to check if they are listed by calling a 1900 phone number at $4.50 per minute or paying for a ‘once–off’ membership to the database operator. Avoid these money–making tactics if possible. The best method is to request the details of the listing in writing. The fee cannot exceed $8.80.


How do I make a complaint about a database listing?

Write to the database operator and ask that the listed information be corrected or removed, give them 30 days' to respond. Keep a copy of all your letters. If you
are unhappy with the response, complain to the Federal Privacy Commissioner. Forms for complaints are available from the Office of the Federal Privacy Commissioner’s website and from your local Tenants Advice and Advocacy Service. If a data base listing causes you hardship, or if you cannot get a quick, satisfactory solution with a database operator contact the Tenants Union of NSW (See contacts).


Rules of conduct

In NSW, real estate agents must comply with the Rules of Conduct under the Property, Stock and Business Agents Act 2002. From 15 September 2004, one of these Rules relates to agents’ use of tenant databases. The Rule restricts the circumstances in which an agent may list you on a database, and sets out requirements that databases must meet before agents may use them to make listings.


Restrictions on listings

Under the Rules of Conduct, an agent may list you only in the following circumstances:

• you were a tenant under a residential tenancy agreement,

• the tenancy has ended,

• the agent notified you of the proposed listing, and gave you an opportunity to respond, AND

• the reason for the listing is allowed by the Rule of Conducts.
If you are listed and any of these circumstances do not apply to you, you can make a complaint about the agent who listed you.

The Rules of Conduct allows only five reasons for listing. These are:

• you owe money because of rent arrears,

• you owe money because of intentional or reckless damage to the premises,

• you have failed to pay money as ordered by the Consumer, Trader and Tenancy Tribunal,

• the tenancy was terminated by the Tribunal because you seriously or persistently breached the tenancy agreement, OR

• the tenancy was terminated for serious injury or damage.

If you are listed for some other reason, you can make a complaint about the agent who listed you.


Requirements for tenant database operators

Under the Rules of Conduct, agents may list only on tenant databases that comply with the following requirements:

• all persons listed on the database must be allowed free access to their listing.

• if a listed person claims that the listing is inaccurate, incomplete or out of date, the listing must be amended or, if the agent disputes the claim, the person’s objection must be noted on the database.

• if a person is listed because of a debt, and the person pays the debt within 3 months, the listing must be removed within 7 days.

• if a person is listed for a debt, and then pays the debt after 3 months, the listing must be changed within 7 days to show that the date has been paid, and be removed within 3 years of the date of listing.

• if a person is listed for a reason other than a debt, the listing must be removed within 3 years of the date of listing.

If you are listed on a database that does not comply with any of these requirements, you can make a complaint about the agent who listed you.
You should make any complaints about agents to the NSW Office of Fair Trading. The Office of Fair Trading can take disciplinary action against agents who breach the Rules of Conduct, including suspending the agent’s licence.
The rules of conduct do not allow you to apply to the Consumer , Trader and Tenancy Tribunal for orders relating to the listing. Complaints under the Rules of Conduct go to the Office of Fair Trading, and the Office decides what, if any, action they may take against the agent. The Office cannot order that the agent pay you compensation.

If you believe that your application for a tenancy has been rejected due to information given out by a tenant database organisation, contact the Tenants' Union of NSW for advice. (see Contact Points).

Remember, there are many different database operators and not all agents and landlords will have access to the same database... so keep trying!