No photos! Court rules against landlord's access to
Real Estate Magazine Online on April 13,
A panel of three Ontario Divisional Court Judges have held that
residential landlords are not permitted to photograph a property
while it is occupied by a tenant unless the lease explicitly
permits such photographs to be taken, or the landlord obtains the
express consent of the tenant.
The Ontario Landlord and Tenant Board ordered a tenant to be
evicted when she refused to allow the landlord access to the
property for the purpose of photographing it so that it could be
listed for sale. The tenant refused on the basis that her privacy
would be invaded if photographs of her and her children's
personal possessions would be disseminated to the public via the
Internet to advance the sale of the property.
The Landlord and Tenant Board held, erroneously, that the lease
in question provided the landlord with entry "in any
circumstances" and that the landlord was therefore permitted
to enter and take pictures. On appeal, the Divisional Court judges
noted that the lease did not contain any such provision.
The Divisional Court reviewed the relevant sections of the
Residential Tenancies Act, 2006 that pertain to a landlord's
right to enter the rental premises and found that none of the
statutory provisions permitted entry for the purpose of taking
photographs to market the property for sale or lease.
Sections 26 and 27 of the Residential Tenancies Act, 2006
provide that a landlord may enter a rental unit for, among other
in cases of emergency;
to clean the unit if the lease requires the landlord to do
to show the unit to prospective tenants (if notice has been
given to end the tenancy);
to carry out a repair, replacement or to do work;
to allow a potential mortgagee or insurer to view the property;
to carry out an inspection of the unit.
A landlord is also permitted to enter a property if they have
the consent of the tenant or "for any other reasonable reason
for entry specified in the tenancy agreement."
The Divisional Court noted that the lease in question allowed
the landlord to enter on notice "for showing the premises to
prospective tenants or purchasers," but also pointed out that
"there is no clause permitted entry by an agent to take
photographs in furtherance of a sale."
The Divisional Court held that the landlord had no right to
enter to take photographs without the tenant's consent
(although they could take measurements) and overturned the eviction
order that was made on the basis of the tenant's refusal to
Interestingly, the Divisional Court distinguished the current
case from a past case where a landlord took photographs of a
property in connection with a damage inspection. In that case, the
photographs were permitted due to the fact that they were taken in
connection with an inspection, which is expressly allowed by the
legislation and presumably also due to the fact that the
photographs would not impact the tenant's privacy rights given
that they would not be published on the Internet.
This recent decision is another reminder of how a little
forethought when drafting a lease can avoid complications down the
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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