by Merv Burgard, Q.C
In this case, an Ontario landlord wanted access to a rental unit in order to take photos to help promote the space prior to selling it. The residential tenant repeatedly denied access to the landlord, so the latter sought an order to evict the tenant.
The tenant expressed concern that photos would display the personal belongings of her and her children on the internet. She did not want photos taken, but she did allow measurements to be taken by the REALTOR® and inspector.
You will see that Section 27(1) of the Ontario Residential Tenancies Act provides for access for a number of specific reasons including “any other reason for entry specified in the tenancy agreement”. No such additional reasons were listed in this tenancy agreement. The Landlord and Tenant Board agreed with the landlord. However, the tenant appealed to the Ontario divisional court and won.
Landlords are not permitted to insist upon taking photographs for the purpose of sale without the tenant’s consent or a permissive clause in the lease. Taking photographs in the absence of such consent or clause clearly infringes privacy interests. However, there can be no privacy interest in measurements or neutral diagrams.
Juhasz v. Hymas 2016 ONSC 1650 (CanLII)
Similar questions were addressed in my Legal Forum question and answer section on OREA’s web site dated April 21, 2013 under the topic Selling Properties, subtopic Tenants. The questions read as follows:
- Is permission required from tenants to take pictures when listing a property?
- Can a tenant refuse a landlord and/or a broker or salesperson permission to take and advertise interior photos that would include the tenant's possessions?
My answer was as follows: Photographing a tenant’s belongings constitutes a collection of personal information that requires their prior consent. The owners’ notice of entry form should include its purposes. That consent could also be included in their lease.
Refer the matter to your brokerage’s Privacy Officer, who may wish to check the PIPEDA (Personal Information Protection and Electronic Documents Act) findings that are on the website of the Office of the Privacy Commissioner of Canada, such as PIPEDA Case Summary 2006-349 - Photographing of tenants' apartments without consent for insurance purposes.
As to the Notice of Entry, see the Guide to the Residential Tenancies Act or the Ontario Landlord and Tenant Board web site.
Photographs and videos can help to market a property. Therefore, leases should be drafted to include prior reasonable consent that allows photos to be taken. Perhaps even taking pictures that do not show the tenant’s personal belongings, or having those belongings moved at the landlord’s expense, would be appropriate, if the tenant consents.
Mervin Burgard, Q.C.
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