Does a Landlord Have a Right to Take Pictures of a Rental Unit Occupied By a Tenant?

The Tenant Holds the Right to Decide Whether a Landlord May Take Pictures of a Rental Unit Occupied By the Tenant. Only With Express Permission Per a Lease Agreement or Subsequent Consent May a Landlord Enter to Take Pictures For Any Purpose Other Than Assisting Maintenance and Repairs.

Understanding Whether Tenant Privacy Rights Require a Landlord to Refrain From Taking Pictures of An Occupied Unit

Lease Agreement Document A landlord may seek to obtain images or photographs of rental unit while occupied by a tenant for various reasons. The reasons that the landlord seeks images or photographs may seem reasonable and innocuous. For example, the landlord may be seeking the images for use within a virtual tour when marketing or promoting the premises during efforts to sell the property, or other purposes. This request may be without any illicit intent; however, a landlord must obtain the consent of the tenant prior to taking and using images of the tenanted rental unit so to protect the privacy of the tenant.

Privacy Concern
What Rights to Personal Privacy Do Tenants Have?

With respect to potential privacy issues, the possessions and belongings of a tenant are personal, and the character of the possessions, may inherently contain significant information about the tenant for which the tenant holds the right to keep private.  For example, the styles and tastes of the tenant could be revealed through publication of certain belongings.  The financial status of the tenant might be revealed via publication of belongings that may be recognized as either posh or thrifty.  Even the security of the tenant could be put at risk by the publication of images that reveal the layout of the unit, among other things.

The Law
What Is Said By the Courts?

The right to privacy of a tenant was the issue within the case of Juhasz v. Hymas, 2016 ONSC 1650 which decided that a landlord lacks a unilateral right to take photographs of a tenanted unit and use such photographs for the purpose of creating and publishing a virtual tour as an online sales tool when listing the property for sale. In Juhasz, it was determined that a landlord may enter a tenanted unit and take photographs for the purpose of aiding maintenance and repairs as obligations of the landlord; however, entering a tenanted unit for the purpose of obtaining photographs to aid marketing of the property was deemed improper.  Specifically, the Divisional Court said:

[26]  The Divisional Court recently considered the issue of entering a tenant’s premises for the purpose of taking photographs in the context of a dispute raised by the tenants about appropriate repairs and maintenance of the rental unit: see Nickoladze v. Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII).  In that context, the decision upheld the right to take photographs as to the maintenance and repairs of the unit: see, for instance, paras and of that decision:

8.  While it might be prudent for a landlord to expressly state in a notice to enter a rental unit that photographs may be taken, the failure to do so does not render the entry unlawful.  Section 27 of the RTA expressly authorizes a landlord to enter a rental unit for the purposes of conducting an inspection and that it is what happened in this case.  The entry was therefore lawful.

9.  Further, the fact that photographs were taken does not, by itself, constitute an infringement of the tenant’s privacy rights.  It would only constitute an infringement if it was done for an improper purpose.  In this case, the Board determined that the photographs were taken for the purpose of the inspection and for use at the hearing of the tenant’s outstanding applications.  It was open to the Board, on the evidence, to reach that conclusion.  In this day and age, it is not at all surprising that either a tenant or a landlord would take pictures of relevant items in order to use them at a hearing before the Board.  Indeed, I understand that, on a prior occasion, the tenant had done precisely that to advance his position.

[27]  The Nickoladze decision is distinguishable from this case. In Nickoladze, the tenant raised issues about his privacy interest being compromised. Justice Nordheimer concluded that, as the photographs were taken in the context of a proceeding before the Board initiated by the tenant, no privacy interest was engaged.  We also note that this decision was in relation to an inspection of the rental unit, an activity which is a specifically permitted ground for entry pursuant to s. 27(1)(4) of the RTA.

[28]  We distinguish the decision of Nordheimer J. in Nickoladze. By way of contrast, in this case, taking photographs of a person’s home and personal belongings without their consent and posting these photographs on the internet clearly infringes privacy interests. In this case, a privacy interest is clearly engaged – an interest enhanced, perhaps, by the tenant’s disability of a post-traumatic stress disorder.

[29]  We agree with the conclusion in the Review Order of the Board in File No. CEL-31023-13-RV (Re) that absent a specific term of the lease, or with the tenant’s consent, there is no authority under s. 27 of the RTA to require entry into a tenant’s premise to take photographs for marketing purposes to advance the sale of the property.  It follows that the refusal by a tenant to allow entry for such purpose cannot be proper grounds for eviction.

As made clear within the Juhasz case, if a landlord wishes to photograph a tenanted unit, the landlord must have the consent of the tenant, either by an expressly worded agreement as per a clause within a lease, or by obtaining consent thereafter unless the photographs will be used to aid the landlord with the maintenance and repair duties of the landlord. It was also made clear that if a tenant refuses to provide consent to take photographs of the tenanted unit, such unwillingness fails to provide grounds for the landlord to evict.

Summary Comment
What Is the Short Answer?

A landlord must refrain from entering a tenanted unit with the intent of obtaining photographs or images for any purpose other than to obtain such as a means to assist in the duty to maintain or repair the premises.  Obtaining photographs or images for another other purpose, such as to obtain and publish such images for the purpose of assisting in the marketing for sale of the property, appears as a breach of the privacy rights of the tenant.

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