Photographing and Filming Tenants’ Possessions for Advertising Purposes: Report

2. Tenant concerns

Introduction

2.1 This chapter considers the prevalence and nature of tenant concerns relating to the taking and use of advertising images that show tenants’ possessions, as well as landlord and agent responses to those concerns.

2.2 Many landlords and agents have been taking and using images of rental properties that show tenants’ possessions without tenant consent in the belief that it was lawful for them to do so. On closer inspection, the law does not establish a right to enter for this purpose and tenants have raised legitimate and cogent concerns about the publication of images of their homes.^[1]

Number of tenant concerns

2.3 The Commission approached various complaint-handling bodies for information about the number of inquiries they had received about advertising images of tenants’ possessions. While the data provided by these bodies indicates a significant and growing number of enquiries are made about this issue each year, stakeholders also told the Commission that the level of concern may be higher than the data suggests.

Government and statutory agencies

2.4 Consumer Affairs Victoria (CAV) is responsible for providing advice to Victorians about their rights and obligations under residential tenancy law. Data provided to the Commission by CAV indicates that it received 266 enquiries about photographs of rental properties taken for advertising purposes in the four years to June 2014.^[2] Over that same period, CAV received a further 215 enquiries about photographs taken of rental properties for unknown purposes. These photographs may have been taken for advertising purposes, or for some other purpose such as showing the landlord the condition of the property during a routine inspection.^[3]

2.5 Privacy and Data Protection Victoria is responsible for providing advice to Victorians about their rights under the Privacy and Data Protection Act 2014 (Vic) (Victorian Privacy Act). The Victorian Privacy Act regulates the handling of personal information by Victorian government agencies, councils and contracted service providers.^[4]

2.6 Although complaints about private landlords and agents fall outside its jurisdiction, Privacy and Data Protection Victoria regularly receives enquiries about photographs showing tenants’ possessions. Privacy and Data Protection Victoria’s submission stated that it received 50 enquiries about this issue in 2013-14, which was over three times more than in the previous financial year.^[5] Of those 50 enquiries, 20 concerned photographs taken for advertising purposes, 11 concerned photographs taken for inspection or maintenance purposes, and 19 did not state the purpose for which the photographs were taken.

2.7 According to Privacy and Data Protection Victoria, the increase in the number of enquiries it receives indicates this issue is of growing concern. Its submission suggested that part of the reason is that:

… real estate agencies photographing rental properties as a common practice for maintenance, inspection and/or advertising purposes has grown in line with the proliferation of on-line real estate services.^[6]

The Real Estate Institute of Victoria

2.8 The submission from the Real Estate Institute of Victoria (REIV) stated that the number of enquiries CAV receives about advertising images that show tenants’ possessions is small when compared with the number of properties advertised for sale or lease each year.^[7] It also noted that the Victorian Civil and Administrative Tribunal (VCAT) has not received an application for an order restraining a landlord or agent from using images showing their possessions for advertising purposes.^[8]

2.9 At the Commission’s roundtable, REIV representatives said that the vast majority of tenants had no problem with their possessions being included in advertising images, and that agents reached mutually agreeable outcomes with tenants who expressed concerns.^[9] The representatives were of the opinion that the law works well as it is, and any changes might be overly prescriptive and unworkable.^[10]

2.10 Evidence provided by various stakeholders throughout the Commission’s inquiry indicated that the majority of landlords and agents try to do the right thing by tenants when it comes to taking and using advertising images that show tenants’ possessions.^[11] These landlords and agents notify tenants in advance that advertising images of their possessions will be taken, and work with tenants to address their concerns.^[12] Affording tenants the opportunity to remove items from view and excluding items from view when taking images were the most common strategies adopted to alleviate the concerns of tenants.

Tenant advocates

2.11 The Tenants Union of Victoria’s (TUV) submission stated that in the three years from 2011 to 2013 approximately 90 people sought its help in relation to their possessions being photographed for advertising purposes.^[13]

2.12 At the Commission’s roundtable, TUV representatives agreed that many landlords and agents are respectful of tenants when it comes to taking and using advertising images, and that many tenants do not have any concerns about their possessions appearing in such images.^[14]

2.13 However, TUV representatives stated that in their experience, even well-meaning landlords and agents sometimes inadvertently violate the rights of tenants and cause them harm, while others blatantly disregard their basic obligations to tenants, including by failing to inform tenants before taking and using advertising images showing their possessions. Furthermore, regardless of the conduct of the agent or landlord, some tenants simply do not want their possessions displayed in advertising images.^[15]

2.14 A number of clients have contacted the Peninsula Community Legal Centre for advice about advertising photographs that show their possessions,^[16] and Housing Justice, an ARC Justice program that assists tenants in the Loddon Mallee region, has received occasional queries about this issue.^[17]

Data gaps

2.15 Stakeholders identified four reasons why the level of concern among tenants may be greater than the above data suggests:

• Tenants may have a limited understanding of their rights and not know who to complain to.^[18] The Peninsula Community Legal Centre’s submission stated that ‘there appears to be a lack of certainty around what tenants can agree to and what they can refuse to do, particularly where those tenants are vulnerable and disadvantaged.’^[19] Several tenants who spoke to the Commission confirmed this view.^[20]

• Tenants may be confused by conflicting advice.^[21] While CAV advises tenants that landlords and agents have a right to enter to take advertising images, the TUV advises tenants they do not.^[22] Both organisations provide information about the Australian Privacy Principles, which may prevent large real estate agencies (but not small agencies or individual landlords) from collecting and using advertising images that capture personal information, such as the tenant’s name or image.^[23]

• Tenants who do not want advertising images taken or used may not complain for fear of retaliation.^[24] The most common concerns of tenants are that voicing their objections will result in a bad reference,^[25] eviction^[26] or a loss of bond money.^[27]

• The information collected by complaint-handling bodies may not be sufficiently detailed or easy to extract. According to Assistant Professor Bruce Arnold, none of Australia’s states or territories collects comprehensive empirical data that reflects the concerns and values of tenants, including the ‘disquiet that many tenants appear to feel about imaging’.^[28]

Commission’s conclusions

2.16 The Commission accepts that this issue is of significant and growing concern to tenants. Further, the Commission is of the view that the issue will continue to create conflict between tenants, landlords and agents until the law provides greater clarity.

Nature of tenant concerns

2.17 The Commission’s investigations revealed that tenants are primarily concerned about privacy, risk of theft, risk of personal harm and inconvenience.

Privacy

2.18 Privacy was the primary concern of tenants consulted during the Commission’s inquiry. Sixty-eight per cent of people who responded to the Commission’s survey indicated that they were worried about the privacy implications associated with the taking and use of advertising images that show tenants’ possessions.^[29]

Taking advertising images

2.19 Assistant Professor Bruce Arnold told the Commission that privacy is embodied in the traditional aphorism that ‘a man’s home is his castle’.^[30] As Arnold explains it, the home is seen as ‘a space from which the uninvited can and should be excluded, a space that should be inviolate irrespective of whether the individual is at home or not’.^[31]

2.20 A number of people the Commission spoke with described a disconnect between the tenant’s experience of the property as their home, and the landlord’s experience of the property as an asset.^[32] A lifelong tenant described this disconnect in detail:

… the word ‘home’ invokes … respect and landlords should recognise that while this is a business transaction, there are many underlying things which make it a home. And when [advertising] photos are taken, it is not your home anymore … Because it is all just business on both sides.^[33]

2.21 Several tenants expressed discomfort at photographers and agents re-arranging their furniture without their permission.^[34] One tenant said that agents fail to respect the dignity of the tenant and the sanctity of the home when they move possessions around without permission.^[35] According to this tenant, who is an aged-care worker, there has been increasing recognition within her profession of the autonomy of the people they care for and the need to ask for permission before moving items around their room or home. The tenant would like to see a similar attitudinal change among real estate agents.^[36]

Particularly private spaces

2.22 Bedrooms were seen to be particularly private spaces. An agent said that they rarely take photographs of bedrooms as they are seen as ‘very private spaces’.^[37]

2.23 Peninsula Community Legal Centre said that tenants were concerned about their children’s loss of privacy and the risks that may expose them to.^[38] One tenant objected to photographs taken of anything relating to their child, including the child’s bedroom.^[39] In that case, the agent chose not to photograph the room even though CAV had informed her that she could photograph the room minus the identifying possessions.^[40]

Particularly private periods of time

2.24 Some tenants felt a heightened sense of vulnerability when photographs were taken during particularly private periods in their lives. One tenant contacted CAV about whether advertising images could be taken while she was pregnant:

I am 35 weeks pregnant … and have a 1 and 3 year old. We obviously want some privacy for the coming months but we are not sure what we are entitled to do.^[41]

2.25 Another tenant contacted CAV to find out if images could be taken after they had received a call from their landlord, who wanted to take photographs later that day.^[42] They were upset at the lack of notice as they were at home sick.^[43]

Aboriginal tenants

2.26 Nellie Flagg from the Victorian Aboriginal Legal Service told the Commission that older Aboriginal people in particular may feel afraid or ashamed if a landlord or agent were to enter their home and take photographs and videos without their permission.^[44] According to Flagg, ‘Their homes could be beautiful but due to the stigma and judgment they have felt their whole lives, it could be very confronting.’^[45]

2.27 This feeling of being judged on the basis of the presentation of one’s home is not exclusive to Aboriginal tenants. A non-Aboriginal tenant told the Commission that ‘it is not a pleasant experience to have complete strangers wandering through your home and passing judgement on how you live.’^[46]

Landlord and agent responses

2.28 While the majority of agents and landlords were in favour of a right to enter to take advertising images, many agents emphasised the need to respect tenants and accommodate their requests while exercising that right.^[47] As one agent told the Commission:

I don’t think [tenants] should have a right to refuse [to have advertising images of their possessions taken], but certainly compromises about the time for photos and respect while photos are taken should happen. If there are concerns, we should come to a compromise room by room.^[48]

Using advertising images

2.29 A number of tenants described themselves as particularly private people who did not want information about their home online without good reason.^[49] One tenant’s explanation for this was because ‘the way you have your house is the way you express your personality.’^[50]

2.30 Many tenants expressed concern that the information contained in the advertising images was online ‘for the world to see’.^[51]

2.31 Other tenants were more concerned about people who already knew where they lived purposefully searching for their address and accessing sensitive information.^[52] One tenant was concerned that people who knew her might see posters on the wall that disclosed her sexuality.^[53] Another tenant said she had items of a very personal nature on her bedside table.^[54]

2.32 Another tenant was of the opinion that advertising images ‘could be used by current or future employers, credit providers … to assess the lifestyle, wealth/poverty of the tenant’.^[55]

Identifying children

2.33 Tenants expressed particular concern about advertising images that identify children.^[56] The Commission was informed of a case in which a child was photographed in their home (as opposed to in a photo that was in their home) and the image was then used on a billboard in front of the property.^[57] The tenant was not aware that advertising images showing her child had been taken.

2.34 In another incident reported to the Commission a tenant objected to advertising images that contained photographs of her children, but the agent initially refused to remove them even after the tenant explained she was at risk of family violence.^[58] The agent only removed the images after the tenant obtained legal advice and threatened to take action against the landlord.^[59]

Identifying deceased people

2.35 A tenant told the Commission that although images advertising the property in which she lived contained photographs of several members of her family, she found it particularly distressing that photographs of her deceased brother were displayed in advertising material.^[60] The tenant had been present when the images were taken, but says she did not pay attention to what the agent was doing as they had agreed that he would not take images showing her possessions.^[61] When the tenant called to complain after seeing the images online, the agent dismissed her concerns, noting that the owners were very happy with them.^[62]

2.36 Victorian Aboriginal Legal Service told the Commission that photographs showing deceased people could be highly offensive to the family members of Aboriginal people. Older Aboriginal people, who may be more traditional than younger Aboriginal people, might be particularly alarmed. Traditionally, when an Aboriginal person dies, many of their possessions, including possessions that show their name and image, are removed or covered up. There are different explanations for this custom.^[63]

Landlord and agent responses

2.37 Although the Commission was told of a number of cases in which a tenant or another person was clearly identifiable in advertising images, there was a general acceptance and awareness among the agents and landlords the Commission spoke with that revealing a tenant’s identity in advertising images is inappropriate.^[64] Many agents were familiar with the Australian Privacy Principles and a number said they would not take or use advertising images that showed a person’s name or image.^[65]

2.38 There was little support among agents and landlords for prohibiting images of tenants’ possessions because of tenants’ general privacy concerns. In relation to tenant requests not to take images of their children’s bedrooms, one landlord said she did not understand it, noting that ‘A bed with a pink doona could be any girl’s room.’^[66]

2.39 However, one landlord told the Commission:

Tenants do have a right to privacy. Any photos should NOT be of the tenants’ possessions … The landlord signs a lease committing to respect the tenant’s privacy, taking photos of their possessions and making those public (via sign posts or internet) is a breach of that privacy. Simple as that.^[67]

Risk of theft

2.40 Theft was the second highest concern of the Commission’s survey respondents, with 63 per cent stating that advertising images showing tenants’ possessions may place tenants at risk of theft.^[68] Online advertisements and large billboards placed in front of the home were seen as particularly risky, with one tenant describing the billboard in front of her home as an ‘inventory of valuable items’ waiting to be stolen.^[69]

Valuable items

2.41 Tenants were primarily concerned about televisions, computers and other electronic goods appearing in advertising images.^[70] Tenants also raised concerns about artworks^[71] and antique furniture.^[72] An agent said she advises tenants to remove jewellery from view.^[73]

2.42 A real estate photographer told the Commission that approximately 50 per cent of tenants ask whether valuable or personal items will appear in images.^[74] However, some agents reported never having been asked about valuable items before.^[75]

Likelihood of theft

2.43 The Commission was informed of one tenant whose home was broken into shortly after advertising photographs showing her possessions were published online.^[76] While Victoria Police has previously advised people against placing virtual tours online as doing so allows would-be-offenders to see what valuables are in the home, it does not have any data on how often properties have been targeted by burglars who first saw those properties online.^[77]

2.44 The TUV stated that it ‘is aware of correlations between photographs being published and [theft] occurring but not proven causation’.^[78] According to the TUV:

… proving the nexus between the taking of photographs specifically and goods stolen from premises is an almost impossible task, as usually this requires police investigation and a successful prosecution.^[79]

2.45 Similarly, the Peninsula Community Legal Centre observed:

We have concerns that tenants appear to have no recourse in this type of situation, especially if the loss of the items was attributable to the publishing of photographs, which could be a possibility, but would be difficult to prove.^[80]

2.46 A case study provided by the Peninsula Community Legal Centre illustrated the difficulties tenants face when their possessions are stolen during an advertising campaign. According to the Peninsula Community Legal Centre, their client ‘made every effort’ to remove valuable items from view when the advertising images were taken, as well as during open house inspections. When valuable items were taken during an inspection, the tenant’s insurance company refused to pay because the thief had been invited onto the property.^[81]

Particularly vulnerable tenants

2.47 Shane McGrath from Housing Action for the Aged told the Commission that older tenants have heightened security concerns due to vulnerability and limited physical mobility. According to McGrath, a number of older tenants have said ‘This wouldn’t have bothered me 20 years ago but now I worry about security …‘^[82]

2.48 One tenant reported that she moved into a property that did not have proper locks so she installed her own.^[83] The tenant said she felt particularly vulnerable to theft. She told the Commission, ‘I don’t want my address published saying I have two computers, a stereo and if you come through the side window you can take it.’^[84]

2.49 Another tenant said she felt vulnerable and at a heightened risk of theft because she was a young woman living by herself. Moving objects so that they did not appear in photographs was an option for some of her possessions, but others were too large.^[85]

Landlord and agent responses

2.50 While there was a general acceptance that open house inspections place tenants at risk of theft, there was a greater level of scepticism among landlords and agents that the same is true of advertising images.^[86]

2.51 One agent questioned whether advertising images posed a greater risk than floor plans, which also identify the entry and exit points.^[87] Another agent observed, ‘Ninety-nine per cent of homes have TV screens and computers. You’re not revealing anything special.’^[88] A landlord commented that if thieves were searching online for houses to rob, then ordinary people had nothing to worry about as it would make sense for these thieves to target expensive properties.^[89]

Risk of personal harm

2.52 Forty-four per cent of the Commission’s survey respondents were concerned that advertising images showing tenants’ possessions may place tenants at risk of personal harm.^[90] Two groups of tenants were identified by stakeholders as being at risk of harm: people at risk of family violence and people whose occupation makes them vulnerable to retribution.

Family violence[91]

2.53 The Commission was informed of two tenants at risk of family violence whose addresses were revealed through advertising images showing their possessions. One tenant was found by her violent ex-partner through advertising images that contained photographs of the tenant and other family members. In the other case, the tenant was found through advertising photographs that displayed her car, including its number plate. Both women had to relocate with their children after receiving multiple threats.[92]

2.54 The Commission was also informed of tenants at risk of family violence who were scared that they may be found through advertising images that showed their possessions.^[93]

2.55 One tenant reported asking an agent to remove an advertising image that contained a photograph of her children, explaining that she was moving away from the area because she was scared her ex-partner would find her on his imminent release from prison. The tenant informed the agent that her ex-partner was in prison for a serious assault that left her with life-threatening injuries. The agent only agreed to remove the image after the tenant sought legal advice and threatened to take legal action against the landlord.^[94]

Landlord and agent responses

2.56 A number of agents the Commission spoke with had experienced one or two cases in which they knew, or suspected, that tenants’ concerns about advertising images stemmed from a risk of family violence.^[95] These agents appeared sensitive to, and accommodating of, the tenants’ concerns. One agent took photographs of the exterior, kitchen and bathroom and showed the photographs to the tenant to obtain her consent prior to using them in an advertising campaign.^[96] Another agent only took photographs of the outside of the property.^[97]

2.57 A family violence support worker with expertise in residential tenancy law said, ‘Some real estate agents are really good with domestic violence and others don’t care.’^[98] In some cases, a problem arises because the leasing agent is aware of the family violence situation but the sales agent is not. However, in the support worker’s experience, a number of agents who know about a tenant’s history of family violence fail to take simple steps to protect the tenant, such as advising the tenant to remove possessions that might identify them before advertising images are taken.^[99]

Occupations at risk of retribution

2.58 The Commission was told about a case in which advertising images revealed that the tenant was a law enforcement officer.^[100] Due to her occupation, the tenant felt the images heightened the risk of personal harm.^[101]

2.59 Other tenants expressed concern that although the images did not reveal their occupation, they might reveal their identity and they were at a heightened risk of personal harm because of their occupation. These tenants worked in the armed services,^[102] community mental health^[103] and education.^[104]

2.60 A high school teacher who works with difficult children told the Commission she felt a ‘heightened sense of vulnerability’ because ‘I wouldn’t want to give fuel to a fire if they wanted to take retribution.’^[105]

Inconvenience

2.61 Many tenants recounted the ways in which they had been inconvenienced when advertising images were taken, including by being:

• harassed into allowing images to be taken

• required to clean to a marketable standard

• required to take time off work in order to exercise their right to be present while images are taken

• pressured to move their furniture or by having their furniture moved without permission

• required to allow their furniture to be used to showcase the property.

Harassment

2.62 Many tenants reported feeling harassed into allowing an agent or photographer to enter to take advertising images.^[106]

2.63 A tenant who had served a notice on her landlord to undertake non-urgent repairs told the Commission that she successfully challenged the notice to vacate she subsequently received on the grounds that it was ‘given in response to the exercised or proposed exercise of a right under the Act’.^[107] At the VCAT hearing, the landlord’s argument that he issued the notice because he intended to sell the property was rejected for lack of evidence.^[108]

2.64 Shortly after the VCAT hearing, the agent contacted the tenant to make a time for a sales appraisal that would include the taking of images. The tenant said:

I felt that I had been manipulated into giving consent because I was worried that if I didn’t give my consent I would be served with a breach of duty .^[109]

2.65 The tenant, who has depression and is afraid of being evicted, described the impact the experience had had on her:

These people [real estate agents] have a huge amount of power over my life. All these choices they make don’t impact on their life, but they have a great impact on my life. I get a barrage of coercive emails from a young and inexperienced agent who works for her father with limited managerial oversight, and this erodes my ability to function on a day-to day-level.^[110]

2.66 Another tenant who expressed concern when asked to make a time for advertising images to be taken, said the agent threatened her with eviction ‘if I “wanted to go down this path”’.^[111] Yet another tenant said that the agent threatened her with a bad reference if she did not provide immediate access for advertising images to be taken.^[112]

Cleaning

2.67 Some tenants expressed concern about the amount of cleaning they were expected to do to ensure the property was of a marketable standard.^[113] Tenants are generally expected to ensure the property is of a marketable standard in the advertising images, as well as throughout the sales campaign.^[114] As a TUV representative described it, tenants are expected to live in a showroom.^[115]

2.68 A tenant told the Commission, ‘They … requested [a] spotless house and our disappearance.’ However, the tenant also said, ‘They never offered to pay for cleaning, for washing and ironing bed linens so they [could] have great presentation.’^[116]

2.69 Another tenant told the Commission that paying full rent should ensure full enjoyment of the property for the duration of the lease. According to this tenant:

It is the little things but you pay your rent so you shouldn’t feel like you are living on tenterhooks and making sure the toilet seat is down. Personally, I am a clean freak and I would never show a property which is substandard.^[117]

Taking time off work

2.70 The TUV told the Commission that one of the main concerns of tenants is not being present when images are taken, often because they cannot get time off work.^[118]

2.71 Even where tenants can get time off work, it may be inconvenient and costly.^[119] Although advertising images only take 30 minutes to one hour to take, tenants may have to take several hours’ leave in order to be present, depending on when the images are taken.^[120]

2.72 A number of tenants reported that their agent was not flexible in organising times for images to be taken and did not try to accommodate the tenants’ work schedule.^[121] One tenant said, ‘I had no choice in what day/time the photographer was coming. I had to change my work schedule to suit them.’^[122]

2.73 The Commission is aware of cases in which the tenant was told by the agent that they would prefer it if the tenant were not present when advertising images were taken.^[123] One tenant informed the Commission that although the agent had told her she had no right to be present while the photographs were being taken, the tenant took time off work to be there for her ‘own peace of mind’.^[124]

Moving furniture

2.74 Some tenants expressed concern about agents moving furniture around the house without their permission.^[125] A tenant told the Commission:

The landlord rearranged my furniture without my permission, then didn’t put it back. They also scratched the floor in the process and later took that out of my bond.^[126]

2.75 The TUV told the Commission that although tenants are able to seek compensation where possessions have been damaged by the landlord rearranging furniture, it is difficult to prove causation.^[127]

2.76 Another tenant reported being asked by the agent to put her furniture into storage at her own cost so the landlord could hire furniture that was less ‘studenty’.^[128] When the tenant refused, the agent asked her to move heavy items of furniture around the property to make the property more presentable.^[129]

Using furniture

2.77 The TUV stated it was of the opinion that the landlord’s right to sell the property does not extend to obtaining a commercial benefit from using the tenant’s furniture to showcase the property. If the landlord is unwilling to use images of a vacant property, the landlord should hire furniture or provide appropriate compensation to the tenant for the use of their furniture.^[130]

2.78 A number of tenants supported this view, noting that ‘the property did not look as good without [my] furniture’^[131] or that ‘possessions can window dress a property to quite a large extent.’^[132]

2.79 When speaking of her frustration at having her possessions included in advertising images, one tenant said:

Yes, I was living there at the time and the furniture matched the period style house better than the owner’s furniture did when he lived there but the furniture shouldn’t sell the property, the features should sell the property. As a current landlord whose property has just sold we checked with the tenant before photographing their possessions and used photos of kitchens/bathrooms etc that don’t include many possessions.^[133]

Landlord and agent responses

2.80 Landlords and agents were more sympathetic to tenants inconvenienced by sales campaigns than letting campaigns.^[134] As they explained it, this is because sales campaigns often run for longer and attract more visitors to the property.^[135] It is also because the sale is often unexpected as far as the tenant is concerned. Letting campaigns on the other hand are seen as an inherent part of the tenancy experience, especially when it is the tenant’s choice to move on at the end of the lease.^[136]

2.81 Among the types of compensation offered to tenants during sales campaigns are reduced rent,^[137] a cleaner,^[138] a gardener,^[139] dinner vouchers,^[140] movie tickets^[141] and beer.^[142] None of these were offered solely for having advertising images taken, but rather for the inconvenience caused throughout the sales campaign.

2.82 Several agents the Commission consulted with tried to work around the tenant’s schedule when taking advertising images.^[143] The Real Estate Institute of Tasmania said it advises its agents to encourage tenants to be present when images are being taken so that tenants have an opportunity to remove any identifying or valuable possessions from view.^[144]

2.83 Different views were expressed by agents on whether furniture improves the presentation of the property.^[145] One agent noted that some tenants have poor quality furniture and that, where that is the case, she advises owners to wait until the end of the tenancy before taking advertising images with hired furniture.^[146] This is because ‘good photos … will really bring the home up and get the best dollar.’^[147] Other agents said that vacant properties make the property look bigger.^[148] Many agents expressed the view that the landlord was in no way disadvantaged by photographs of a vacant property.^[149]

Commission’s conclusions

2.84 There are many reasons why a landlord may advertise their property for sale or lease: the tenant may have decided to move on at the end of the lease, the tenant may have broken the lease early, the landlord may have evicted the tenant for repeatedly breaching their duties to the landlord or the landlord may have decided to sell. In each case, the tenant bears the pressure of potentially or actually relocating, and the landlord and agent bear the pressure of the costs of vacancy if the property is not quickly sold or re-leased.

2.85 The lack of certainty about each party’s rights in relation to advertising images increases the possibility of conflict and distress. Tenants in particular can feel vulnerable and placed under undue pressure by landlords and agents who fail to respect their legitimate concerns about the implications of the advertising campaign on their privacy and security in the home. Legal clarity and certainty would assist all concerned and reduce the number of unnecessary disputes of this kind.

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1. The Commission’s findings in this regard are set out in more detail in Chapter 3.

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2. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014 and 30 January 2015).

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3. Ibid.

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4. Submission 14 (Privacy Victoria).

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5. Ibid.

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6. Ibid.

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7. Submission 10 (Real Estate Institute of Victoria).

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8. Ibid.

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9. Consultation 37 (Roundtable).

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10. Ibid. Agents the Commission consulted with expressed divergent views, with some agreeing that the law works well in relation to advertising images and others saying that greater clarity would be helpful.

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11. Submission 10 (Real Estate Institute of Victoria). Consultations 10 (Rachel Spurgeon, sales consultant, LJ Hooker Geelong); 28 (Gina Butera).

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12. Consultations 8 (a real estate agent); 10 (Rachel Spurgeon, sales consultant, LJ Hooker Geelong); 17 (a real estate agent).

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13. Submission 13 (Tenants Union of Victoria).

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14. Consultation 37 (Roundtable).

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15. Ibid.

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16. Submission 9 (Peninsula Community Legal Centre).

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17. Submission 6 (Housing Justice). ARC Justice was formerly known as the Advocacy and Rights Centre.

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18. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). Submission 9 (Peninsula Community Legal Centre). Consultations 18 (Jacky Welgus); 21 (a tenant).

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19. Submission 9 (Peninsula Community Legal Centre).

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20. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). Consultations 18 (Jacky Welgus); 21 (a tenant).

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21. Consultations 4 (a tenant); 31 (a tenant); 33 (a tenant).

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22. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014). Tenants Union of Victoria, The landlord is selling (July 2013) <http://www.tuv.org.au/advice/during-your-tenancy/your-landlord-is-selling/>.

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23. Ibid.

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24. Consultation 33 (a tenant). VLRC online survey.

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25. Submission 1 (Tenants’ Union ACT). Consultation 31 (a tenant). VLRC online survey.

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26. Consultations 3 (Tenants Queensland); 6 (Tenants’ Union of New South Wales).

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27. VLRC online survey.

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28. Submission 11 (Assistant Professor Bruce Arnold).

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29. 159 of 233 respondents said that the photographs or videos could violate the tenant’s privacy.

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30. Submission 11 (Assistant Professor Bruce Arnold).

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31. Ibid.

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32. Consultation 18 (Jacky Welgus). VLRC online survey.

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33. Consultation 18 (Jacky Welgus).

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34. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014) and by the Tenants Union of Victoria (15 August 2014).

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35. Consultation 18 (Jacky Welgus).

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36. Ibid.

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37. VLRC online survey.

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38. Submission 9 (Peninsula Community Legal Centre).

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39. Preliminary consultation with real estate agent (3 February 2014).

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40. Ibid.

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41. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).

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42. Ibid.

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43. Ibid.

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44. Consultation 32 (Victorian Aboriginal Legal Service).

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45. Ibid.

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46. VLRC online survey.

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47. Consultations 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office); 8 (a real estate agent); 22 (Corina Bailey, CEO, Landlord Specialists).

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48. Consultation 22 (Corina Bailey, CEO, Landlord Specialists).

    ↑

49. Consultations 31 (a tenant); 33 (a tenant); 35 (a tenant).

    ↑

50. VLRC online survey.

    ↑

51. VLRC online survey. See also Consultations 11 (a tenant); 18 (Jacky Welgus).

    ↑

52. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014).

    ↑

53. VLRC online survey.

    ↑

54. Information provided to the Commission by the Tenants Union of Victoria (10 July 2014).

    ↑

55. VLRC online survey.

    ↑

56. Submissions 9 (Peninsula Community Legal Centre); 14 (Privacy Victoria). Information provided to the Commission by the Tenants Union of Victoria (15 August 2014).

    ↑

57. Consultation 3 (Tenants Queensland).

    ↑

58. Consultation 13 (Linda Grady, tenant advocate and domestic violence support worker).

    ↑

59. Ibid.

    ↑

60. Consultation 31 (a tenant).

    ↑

61. Ibid.

    ↑

62. Ibid.

    ↑

63. Consultation 32 (Victorian Aboriginal Legal Services). For Nellie Flagg from the Victorian Aboriginal Legal Service, it is because a failure to do so may prevent the deceased person’s spirit from passing into the next world.

    ↑

64. Consultations 8 (a real estate agent); 16 (Real Estate Institute of Tasmania); 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).

    ↑

65. Consultations 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale); 10 (Rachel Spurgeon, sales consultant, LJ Hooker Geelong); 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management). VLRC online survey. The application of the Australian Privacy Principles to advertising images containing tenants’ possessions is considered at [3.26]–[3.28].

    ↑

66. Consultation 28 (Gina Butera).

    ↑

67. Information provided to the Commission by a landlord (27 August 2014).

    ↑

68. 146 of 233 respondents said that the photographs or videos could place the tenant at risk of theft.

    ↑

69. Consultation 33 (a tenant).

    ↑

70. Consultations 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office); 8 (a real estate agent). VLRC online survey. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014).

    ↑

71. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). Consultation 14 (Tenants’ Union of Tasmania).

    ↑

72. VLRC online survey.

    ↑

73. Consultation 17 (a real estate agent).

    ↑

74. Consultation 12 (a photographer).

    ↑

75. The Commission survey asked real estate agents, ‘Do tenants have any concerns about the photographs or videos?’ 23 of 36 real estate agents said ‘no’.

    ↑

76. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).

    ↑

77. Information provided to the Commission by Victoria Police (12 March 2014).

    ↑

78. Submission 13 (Tenants Union of Victoria).

    ↑

79. Ibid.

    ↑

80. Submission 9 (Peninsula Community Legal Centre).

    ↑

81. Ibid.

    ↑

82. Consultation 27 (Shane McGrath, tenancy worker, Home at Last service, Housing for the Aged Action Group).

    ↑

83. Consultation 20 (a tenant).

    ↑

84. Ibid.

    ↑

85. VLRC online survey.

    ↑

86. Consultation 1 (a real estate agent). VLRC online survey.

    ↑

87. Consultation 1 (a real estate agent). A real estate photographer (consultation 12) said that professional videos are edited so that they do not provide a 360-degree view of the entry and exit points of the property. However, a filmed walk-through of the property can display the entry and exit points of the property.

    ↑

88. Consultation 1 (a real estate agent).

    ↑

89. Consultation 30 (a landlord).

    ↑

90. 102 of 233 respondents said that the photographs or videos could place the tenant at risk of personal harm.

    ↑

91. Consultation 13 (Linda Grady, tenant advocate and domestic violence support worker). These cases occurred in New South Wales.

    ↑

92. Information provided to the Commission by Consumer Affairs Victoria (26 February 2014) and the Tenants Union of Victoria (15 August 2014). Consultation 13 (Linda Grady, tenant advocate and domestic violence support worker). VLRC online survey.

    ↑

93. Consultation 13 (Linda Grady, tenant advocate and domestic violence support worker). This case occurred in NSW.

    ↑

94. Consultations 22 (Corina Bailey, CEO, Landlord Specialists); 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management); 26 (David Stewart and Leesa Stewart, Market Share Property).

    ↑

95. Consultation 22 (Corina Bailey, CEO, Landlord Specialists).

    ↑

96. Consultation 26 (David Stewart and Leesa Stewart, Market Share Property).

    ↑

97. Consultation 13 (Linda Grady, tenant advocate and domestic violence support worker).

    ↑

98. Ibid.

    ↑

99. Preliminary consultation with tenants’ advocate (28 January 2014).

    ↑

100. Ibid.

     ↑

101. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014).

     ↑

102. Ibid.

     ↑

103. Consultation 21 (a tenant).

     ↑

104. Ibid.

     ↑

105. Consultations 4 (a tenant); 11 (a tenant); 33 (a tenant).

     ↑

106. Consultation 11 (a tenant).

     ↑

107. Ibid.

     ↑

108. Ibid.

     ↑

109. Ibid.

     ↑

110. VLRC online survey.

     ↑

111. Ibid.

     ↑

112. Consultations 6 (Tenants’ Union of New South Wales); 21 (a tenant); 37 (Roundtable). VLRC online survey.

     ↑

113. Consultations 1 (a real estate agent); 6 (Tenants’ Union of New South Wales); 12 (a photographer); 26 (David Stewart and Leesa Stewart, Market Share Property); 37 (Roundtable).

     ↑

114. Consultation 37 (Roundtable).

     ↑

115. VLRC online survey.

     ↑

116. Consultation 21 (a tenant).

     ↑

117. Consultation 37 (Roundtable).

     ↑

118. Information provided to the Commission by the Tenants Union of Victoria (10 July 2014).

     ↑

119. Consultation 1 (a real estate agent).

     ↑

120. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). VLRC online survey.

     ↑

121. VLRC online survey.

     ↑

122. Information provided to the Commission by the Tenants Union of Victoria (15 August 2014). Consultation 33 (a tenant).

     ↑

123. Consultation 33 (a tenant).

     ↑

124. VLRC online survey.

     ↑

125. Ibid.

     ↑

126. Submission 13 (Tenants Union of Victoria).

     ↑

127. Consultation 33 (a tenant).

     ↑

128. Ibid.

     ↑

129. Consultation 37 (Roundtable).

     ↑

130. Consultation 4 (a tenant).

     ↑

131. VLRC online survey.

     ↑

132. Ibid.

     ↑

133. Consultations 1 (a real estate agent); 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office).

     ↑

134. Consultation 1 (a real estate agent).

     ↑

135. Consultations 1 (a real estate agent); 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office).

     ↑

136. Consultations 1 (a real estate agent); 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office); 37 (Roundtable).

     ↑

137. Consultation 22 (Corina Bailey, CEO, Landlord Specialists).

     ↑

138. Ibid.

     ↑

139. Ibid.

     ↑

140. Consultation 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).

     ↑

141. Consultation 22 (Corina Bailey, CEO, Landlord Specialists).

     ↑

142. Consultation 12 (a photographer). VLRC online survey.

     ↑

143. Consultation 16 (Real Estate Institute of Tasmania).

     ↑

144. Consultations 4 (a tenant); 12 (a photographer); 17 (a real estate agent); 26 (David Stewart and Leesa Stewart, Market Share Property).

     ↑

145. Consultation 17 (a real estate agent).

     ↑

146. Ibid.

     ↑

147. Consultation 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale).

     ↑

148. Consultations 2 (a real estate agent); 24 (Sophie Lyon, general manager, Property Management Division, PhilipWebb); 26 (David Stewart and Leesa Stewart, Market Share Property).

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