Does a Tenant Have a Right to Decline Entry If a Landlord Wants to Take Pictures of An Apartment?

A Landlord May Enter, With Proper Notice, An Occupied Apartment With the Intent of Taking Pictures If the Pictures Are For the Purpose of Assisting the Landlord With the Maintenance and Repair of the Premises. Taking Pictures For Other Purpose, Without Consent, Is Unlawful.
A Helpful Guide On How to Determine Whether the Tenant Holds a Right to Privacy That Requires the Landlord to Refrain From Entering to Take Pictures of a Tenanted Unit

Lease Agreement Document From time-to-time, a landlord may wish to take images or photographs of a tenanted unit.  The purpose may seem reasonable and innocuous such as out of a desire to publish the images in the form of a virtual tour of the unit during the marketing or promotion of the premises as for sale, among other things.  While this desire may be without any nefarious intentions, a landlord must obtain express permission from the tenant so to avoid breach of privacy concerns.

Privacy Concern

With respect to potential privacy issues, the possessions and belongings of a tenant are person, 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

The privacy rights of tenant were outlined within the case of Juhasz v. Hymas, 2016 ONSC 1650 wherein it was decided that a landlord is without the unilateral right to photograph a tenanted unit for purposes of gathering images to publish in the form of an online virtual tour so to assist and support efforts to sell the property.  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 8 and 9 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.

Per the Juhasz decision, it is clear that the landlord must obtain permission of the tenant by way of an express agreement within the lease, or by subsequent consent, if the landlord is to enter the premises of the tenant for the purposes of obtaining photographs or images for any purpose other than to assist with the duty of the landlord to perform maintenance and repairs.  Furthermore, it is clear that a refusal to provide consent by the tenant is insufficient as grounds for an eviction.

Summary Comment

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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