Are Landlords Entitled to Take Photos for the Purpose of Listing or Sale Without the Consent of the Current Tenant?

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 or 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.

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 allow entry.

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 road.