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You are about to sell your rental complex and you want to get the apartment ready for market.  You call your real estate agent and they come over on an agreed-to date with their tape measure and camera at the ready.  Your agent starts measuring a few rooms, then gets the cell phone out to take pictures, but your Tenant then says, “No.”

A recent Divisional Court ruling has declared that there is no right under s. 27 of the Residential Tenancies Act to allow anyone to photograph a Tenant’s rental unit for marketing purposes without the Tenant’s express permission, or by any prior agreement in the residential lease to allow that photography.  In Juhasz v. Hymas, 2016 ONSC 1650, the three-judge panel held that the privacy interests of the Tenant outweigh the marketing interests of the Landlord.

[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.

There are instances where photography is permitted; namely, in an inspection for maintenance issues.

[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:

  1. 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 if 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.

  2. 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.

To keep yourself in the clear, it is suggested to Landlords that they insert clauses into their leases which outline when photography is permitted by the Landlord.  Those instances should include when the Landlord intends to market the rental unit/complex or when there is a maintenance issue with the Tenant.  If it’s in the lease, there should be no reason why you can’t snap away.