Can A Landlord Use Pictures Of Your Stuff When Marketing It's Property For Sale?
How far can a landlord go to market its property for sale. Specifically, can the landlord enter your apartment and take pictures of the rental unit, which include your "stuff", and use those pictures to market the property in a public forum such as on the internet. Ontario Divisional Court recently ruled that the answer was no.
The tenant appealed a Landlord and Tenant Board decision which evicted her and her family from a rental unit. The tenant had denied the landlord access for the purpose of taking pictures which would be used on the internet to market the property. She objected to the pictures included her belongings and the belongings of her children citing privacy concerns as the pictures would be visible all over the world through internet portals. The tenant had allowed the landlord access to measure the unit for marketing purposes.
Divisional Court reviewed the grounds under which a landlord is allowed to enter a rental unit. They include:
1. To carry out a repair or replacement or do work in the rental unit.
2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Act or a certificate of practice within the meaning of the Architects Act or another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9(4) of the Condominium Act, 1998.
4. To carry out an inspection of the rental unit, if,
(i) the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20(1) or section 161, and
(ii) it is reasonable to carry out the inspection.
5. For any other reasonable reason for entry specified in the tenancy agreement.
As there was no provision in the lease that allowed access to take pictures, the court ruled that doing so constituted a violation of the tenant's privacy rights.
The Lesson for Landlords: Absent a tenant's consent, you must have a provision in the lease that allows you to enter a tenant's home and take pictures that will be used for marketing purposes. Given the invasive nature of using pictures of a tenant's possessions for marketing purposes, I suggest that this provision must specifically be brought to the tenant's attention when he or she signs the lease. Failure to do so, could result in a court ruling that the tenant did not have adequate notice of the privacy violation.
The Lesson for Tenants: In this case, the tenant was reasonable in allowing some access which likely assisted her position. Be reasonable with your landlord and work with them by offering to allow access for measurements so that they can market the unit.
For both parties: Reasonable compromise will likely take you far. Work with each other to address each other's concerns by moving personal possessions or framing shots so that they do not include personal possessions. A reasonable position can go a long way to resolving the dispute.
Juhasz v Hymes, 2016 ONSC 1650 https://www.canlii.org/en/on/onscdc/doc/2016/2016onsc1650/2016onsc1650.html?resultIndex=1
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
The author encourages you to share this article on social media.