Does Landlord get full tenant application? (NSW)

In NSW does the full tenant application,including the identity documents like pass port and bank details, gets forwarded to the landlord? Or does the real estate agent keep the application and only forward only minimal details to land lord, keeping in mind tenant privacy ?
If the tenant is later shown not to have working rights in Australia and loses job then is the agent who was supposed to verify the application responsible in any way?

 

If the landlord wants them, they can get them. There's no right to a tenant's "privacy" against a landlord.

 

While agents should be verifying identity, income and employment, do they have a responsibility to check work rights?

 

I have never been given any of the above, nor have I asked for it. I don't need to see a passport, or a bank account. Having a healthy bank account is no guarantee that the tenant is a good payer. What I'm interested in, is the history of the tenant, not how much money they have in their bank account.

 

So if they're working illegally who is responsible?

 

Most landlords don't need or want to see identifying information - they only care about judging the application on its merits. They don't need passports or anything to do that. As to bank details, I've never encountered an REA that even asked for them, and frankly with employment details and rental history I cannot see how it would be relevant - if someone spends $2000 a week on hookers and cocaine I can't see how a landlord would care if they also have a spotless rental history, glowing references, and $4000 a week income (for example).

If for some bizarre reason you did want to see personally identifying information (which you shouldn't, since you then give yourself information you don't need which could potentially open yourself to discrimination complaints) then the OAIC is of the view that the Privacy Act applies to real estate agents (who meet turnover limits) which would also pass on to you, meaning you'd have certain obligations regarding not disclosing or using for secondary purposes.

Where the Privacy Act applies to an REA, they'd also be required to redact any passport numbers, drivers license numbers, or medicare numbers etc before passing on copies of any document, and under no circumstances should disclose a tax file number to you.

No, the employer should be doing that. Home Affairs permits real estate agents only to verify residence status of a person.

 

I have never even been asked (let alone had to prove) that I have the right to work in Australia so I fail to see the relevance of the question.

The identity checks are simply that... proving ones identity. The ability to pay the rent is assessed generally, not on whether someone has the right to work or not.
Student visa holders for example are sually limited to working 20 hours per week but so what, they are supposed to prove to immigration they can support themselves in the first place.

Your tenant selection needs to go beyond whether they have a job or not. The right to work and ability to pay rent are entirely separate issues.

I think you are clutching at straws if you think a PM is responsible for a tenants immigration (and by extension work rights) status.

 

Unfortunately or fortunately Immigration Dept has the right to deport people.
Even if they are Your tenant with a lease......
I hope this helps.

 

Yes the agent is definitely responsible. It's the same as agents who approve (in consultation with owners) applicants who don't have valid visas that would enable the applicant to fulfil the entire term of a fixed lease.

I've seen and heard many cases where the poor old property manager just didn't look beyond the photo in a non-Australian passport.

 

Responsible in what way? Morally? Maybe. Doubtful but I guess its subjective.

Legally? Nope.

 

Oh yes it is legally. It would be a clear breach of the Management Agency Agreement and the owner would be perfectly entitled to take action against the managing agent at *CAT.

Relevant section of a NSW MAA:

The owner authorises the agent to undertake the following management, administration and/or leasing services:

1. Obtain and verify references from prospective tenants.

 

Really want to read some case law on this.

 

It wouldn't be a breach, let alone a "clear breach".

The section you quote just basically says that the owner permits the agent to get and check references. What does that have to do with working rights or immigration?

 

Obtaining and verifying references has nothing to with obtaining and verifying right to work in Australia.

It is an employers responsibility to make sure employees have the right to work, not a landlords.

If the OP wants to blame anyone it should be the person who didnt realise they didnt have the right to work, not the PM.
Unfortunatly you can only blame yourself for the decision to lease/not to lease under the assumption this person was going to remain employed (irespective of the reasons for them not actually doing so)

 

Ok let me clarify as you raise two distinct aspects to the situation.

An applicant/tenant who takes out a 26 week lease, let's say, could be here on a holiday/family visa (I'm no specialist in immigration etc) and let's say s/he has enough money to last the full term of the lease.

If all of a sudden the tenant is caught working illegally by immigration authorities and is deported then there's no blame on the agent.

But, if the applicant is not here legally, or has a visa that doesn't allow him/her to fulfill the entire lease, and the agent has not detected this through verification checks and the lease is signed then the agent has breached the MAA and the owner would be entitled to recourse.

 

do you have case law on this?

 

Yes I still disagree with this part.

It would have to be some sort of special scenario where the lessor has expressly instructed the agent to go to this length, and not a 'default' obligation for an agent.

 

I would think it rare that many immigrants would be able to fulfill the entire lease within thier visa expiry as most visas are issued short term-renewable, and having a visa and lease expire in coincidence is just unrealistic. Rather there would be an expectation the tennant either renew thier visa or sign a lease for a suitable duration if they were not intending to.

In other words, Its the applicants responsibility to make sure they will be in the country for as long as thier lease lasts, not the PMs.

Furthermore you dont need a passport to prove your identity, so in this PC world how is a PM to know whether someone is an immigrant anyway.

 

Not case law, but I've seen a case first hand and the agency director 'settled' with the owner.

But if the PM can see that the visa is for a shorter period than the proposed lease term and doesn't disclose this to the owner, or fails to see it altogether then the PM has failed in their obligation to verify that an applicant has the capacity to fulfill the lease.

Ask yourself, if you were the owner of a property and an applicant wanted a 52 week lease but only had a visa for 30 weeks, would you approve such an applicant?

If the PM is doing their job correctly then they would rely on a primary identification document with a photo to verify who the applicant actually is. A primary document with a photo is either a passport, drivers licence or proof-of-age card.

 

How about a non-australian drivers license? A US one say, that is in english.