Are Landlords Allowed to Take Photos of Rental Units for Sale?

With the current pandemic, selling or renting a property can be difficult. Selling one that is currently occupied by a tenant is even more challenging. The pandemic has created a shift in how landlords and realtors are able to show homes that are currently listed for sale. Instead of potential buyers getting an in-person walkthrough and inspection, realtors are using photos and creating virtual tours of the property to lure potential clients.

One question that has come up several times during this pandemic is - can a landlord or the landlord’s agent take pictures of a rental property that is currently occupied by a tenant? The short answer to that question is no, however it depends on the reason that the photos are needed.

Sections 26 and 27 of the Residential Tenancies Act, 2006 provide that a landlord may enter a rental unit for, among other reasons:

1. in cases of emergency;
   
2. to clean the unit if the lease requires the landlord to do so;
3. to show the unit to prospective tenants [if notice has been given to end the tenancy];
4. to carry out a repair, replacement or to do work;
5. to allow a potential mortgagee or insurer to view the property; and
6. to carry out an inspection of the unit.
   

As well, 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.

But these reasons alone do not allow for photos of the unit to be taken. The landlord is permitted to take photos inside a rental unit for the purposes of assisting the landlord with maintenance or repairs that are required or if needed to respond to a tenant’s application at the Landlord & Tenant Board.

Taking photos, other than these purposes, without the express consent of the occupant is unlawful. This is because the occupant is entitled to their privacy within the rental unit and thus photos are not allowed to be taken to be used online unless the tenant has provided their consent to do so.

Creating a virtual showing of a property for sale or the posting of the photos online for a listing without consent may constitute a breach of the tenant’s privacy according to recent case law on the subject. In this case, the tenant argued that posting pictures of their family’s belongings was a breach of their privacy and interfered with their reasonable enjoyment of the rental. And if the sole purpose of entry to the unit is to take photos to post online, the tenant can refuse entry to the landlord and/or landlord’s agent and such refusal will likely not be grounds for eviction.

So with a little foresight, when creating a rental agreement/lease, a good idea would be to include a clause allowing for the landlord to take photos to be used in case they decide to put the property up for sale. As well, consent could also be obtained by creating a separate document executed at the time of requiring the photographs outlining the tenant’s consent to take photographs of the rental unit.

These are unprecedented times and many people are confused and require assistance. Here at De Palma & Associate, we offer free initial consultations to discuss your legal matter and there is no obligation to retain our services at this consultation. As well, our fees are charged as a flat rate in an effort to be transparent about the cost of our services. We also do not ask our clients to provide us with retainer funds. We believe in building trust with our clients and that is why we invoice our clients as their case progresses and they see work being done as opposed to requesting money from them upfront. And in an effort to ensure our clients feel comfortable reaching out to us for questions or an update on their case, we do not charge for phone calls/emails with our clients as well as not charging for follow up meetings at our offices.

With offices located in Barrie and Wasaga Beach, De Palma & Associate can provide legal representation for Small Claims Court cases, landlord & tenant disputes, traffic tickets, United States entry waivers, criminal pardons (record suspensions) and document commissioning throughout the Georgian Bay area and the GTA. If you have any questions or require legal representation, give us a call at De Palma & Associate - (705) 429-2401.