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.
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, the landlord may demands a parent or guardian to act as a guarantor. A guarantor is a person who agrees to pay if you do not.
Despite what the landlord says, it is 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.
If a prospective landlord or agent expresses doubts about your ability to pay the rent because you are on Centrelink benefits, remind them that you are at least guaranteed a regular fortnightly income and Centrelink payment sufficient to cover a reasonable rent in a share house.
If you believe you have been refused a tenancy by a landlord or real estate agent because of your race, colour, ethnicity, nationality, gender, sexuality, marital status, disability or age you can make a discrimination complaint. Discrimination complaints can be made to the NSW Anti-Discrimination Board (ADB) or the Australian Human Rights Commission (AHRC). You have 12 months to lodge a complaint.
Unfortunately, it is difficult to prove that the reason you failed to get a particular tenancy was due to discrimination as landlords or agents do not have to provide reasons for rejecting applications. You can contact the ADB or the AHRC to get up to date information about making discrimination complaints. You can also contact your local community legal centre to get advice about discrimination complaints (see Contact Points).
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 tenancy database. These databases are run by private companies, which provide lists of ‘bad tenants’ to landlords, for example, tenants who leave a place owing money for rent.
The landlord or the agent can only list you on the database if:
- you were a tenant under a residential tenancy agreement and your tenancy agreement or co-tenancy has terminated;
- you have breached the tenancy agreement (for example, by not paying the rent);
- because of the breach, you owe the landlord an amount that is more than the bond or the New South Wales Civil and Administrative Tribunal (NCAT) has made a termination order; and
- the information identifies the nature of the breach and is accurate, complete and unambiguous.
Before the landlord or the agent can make a listing, they must give you a copy of the information they want to list on the database, give you at least 14 days to review the information and respond, and consider your response.
Once listed, a database operator cannot keep your personal information for more than 3 years.
Most people find out they are listed when their applications for a tenancy are constantly rejected. If an agent has rejected your tenancy application, ask them if it is because you are on a database, and if so, what database. Legally, if the agent finds information about you on a tenant database, they must write to you within 7 days stating that you are listed and the details of the landlord who listed you.
You can also contact the landlord or the agent who listed you. On your written request, the landlord or the agent must give you a copy of the information within 14 days of your request, free of charge.
How do I make a complaint about a database listing?
If you agree with the information listed on the database, find out who listed you and why. This might involve writing to a database operator or an agent you think made a listing and talking to the landlord about what you can do to resolve the issues. For example, if the landlord listed you for leaving without paying the rent, you might come to an agreement to pay the outstanding rent in return for the landlord removing your name from the database.
If you disagree with the information listed on the database, contact the landlord or agent who listed you. If the landlord or agent becomes aware that the information is inaccurate, incomplete, ambiguous or out-of-date, they must write to the database operator within 7 days instructing them to change the information.
You can also apply to NCAT to get your name removed or to change the information on the database. The Tribunal may make such an order if it thinks that the information is inaccurate, incomplete, ambiguous or out-of-date or if listing the information is unjust in the circumstances.
Contact your local tenants’ service if you need further advice (see Contact Points). Remember, there are many databases and not all agents and landlords will have access to the same database, so keep trying!