30 May 2019

Family and domestic violence laws: Protecting tenant privacy during reference checks

Last month the family and domestic violence (FDV) provisions in our residential parks (long-stay) legislation came into effect in WA. While a wealth of information about the new laws exists, there can be a teething period as they come into practice. To help you navigate this new territory we’ll periodically explore topics that are raising questions in the field.

Today we focus on the lessor’s obligation to maintain a tenant’s privacy following termination of a tenancy agreement due to FDV circumstances.

Scenario: “How did the tenancy end?”

You had a tenant leave an on-site tenancy early due to family and domestic violence. A few months later, another lessor is doing a background check on that former tenant and contacts you to ask, “How did the tenancy end?”

Remember that this inquiry can apply to:

• a tenant affected by FDV who terminated their interest in an on-site tenancy agreement;
• a perpetrator tenant whose interest in an on-site tenancy agreement was terminated by the SAT; and/or,
• a co-tenant who elected to terminate their interest in an on-site tenancy agreement after receiving notice of the affected tenant leaving on grounds of FDV.

What can you say?

Of note in this situation is what you cannot say.

The new laws prohibit you from disclosing the “evidence of FDV” except in accordance with the Residential Parks (Long-stay Tenants) Act 2006 or another written law; therefore your main priority is to maintain the privacy, security and dignity of the affected tenants as well as any perpetrators.

Further, the non-discrimination clause in the FDV laws means that a lessor cannot legally base their choice of tenant on the knowledge that a lease was terminated due to FDV. That means a person being either a victim or perpetrator of FDV does not meet the criteria to be deemed a material fact.

Simply, when asked how the tenancy ended you will need to choose your words carefully to ensure you do not disclose confidential information. 

Note: if a perpetrator left the tenancy owing more than the bond in unpaid rent or damage, they can be listed on a tenancy database. That information would be available to anyone who searched that database.

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