Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper
3. Right to enter
3.1 At common law, a tenant’s right to exclusive possession allows the tenant to exclude the landlord as well as strangers from the property.[1] However, a limited right of entry can be granted to the landlord by contract or statute and is not inconsistent with the grant of exclusive possession.[2]
3.2 Limited rights of entry have been granted to landlords and agents in the residential tenancy legislation of all Australian states and territories. In a very narrow set of circumstances, such as an emergency, landlords and agents may enter without notifying tenants or obtaining their consent.[3] In a broader set of circumstances, such as when conducting a routine inspection, landlords and agents may enter after providing tenants with adequate (written) notice.[4] In these circumstances, tenant consent is not required. Landlords or agents must obtain a tenant’s consent if they wish to enter for any other purpose.
3.3 No state or territory has enacted an express provision authorising entry to take advertising photographs or videos.
Victoria
An overview
3.4 The Residential Tenancies Act 1997 (Vic) (‘the Act’) sets out the circumstances in which a landlord or agent may enter a rental property in Victoria.[5] It is an offence for a landlord or agent to enter other than in accordance with the Act, unless they have a reasonable excuse for doing so.[6]
3.5 Under the Act, a landlord or agent may enter a property at any time agreed to by the tenant, as long as the entry takes place within seven days of obtaining the tenant’s consent.[7] A landlord or agent may also enter the property without the tenant’s consent at any time between 8am or 6pm (except on public holidays) in order to:
• show the property to a prospective tenant, buyer or lender
• carry out a duty under the Act, the tenancy agreement or any other Act
• obtain an evaluation
• verify a reasonable belief that the tenant has failed to comply with his or her duties under the Act or the tenancy agreement
• inspect the premises.[8]
3.6 If a landlord or agent wishes to enter for one of these reasons without first obtaining the tenant’s consent, the landlord or agent must:
• give at least 24 hours notice to the tenant
• provide written notice stating the reason for entry
• deliver the notice via mail or in person between the hours of 8am and 6pm.[9]
3.7 A person entering the property in accordance with the Act must do so in a reasonable manner and, unless they obtain the tenant’s consent, cannot stay longer than is necessary to fulfil the purpose of their visit.[10]
3.8 A tenancy agreement must be in a standard form.[11] Extra terms may be added. However, these terms cannot take away the rights and duties of landlords and tenants contained in the Act. If a tenancy agreement term sought to grant landlords and agents the right to take or use photographs or videos that contained tenants’ possessions for advertising purposes, the term would be invalid to the extent that it sought to modify the statutorily protected rights and duties of the tenant.
To show the property
3.9 The Act does not specifically permit entry in order to take photographs or videos for advertising purposes. It appears from current practice that the majority of landlords and agents hold the view that permission can be implied. According to this view, the Act authorises a landlord or agent to enter on the grounds that publishing the photographs or videos amounts to, or is sufficiently incidental to, showing the property to a prospective tenant or buyer.
3.10 Based on this view, when publishing photographs or videos of the inside of the rented property as they are lawfully entitled to do, a landlord or agent may publish images that contain tenants’ possessions unless the image violates a right of the tenant.
3.11 This interpretation is consistent with the advice given by Consumer Affairs Victoria (CAV). CAV informs tenants that they should put their valuables away if they are concerned about their possessions being shown in advertising photographs, and that although tenants can ask an agent not to take photographs of their possessions, ‘this is not legislated and is only a negotiation point.’[12] If the photographs clearly identify the tenant or a family member, CAV advises tenants to contact the Office of the Australian Information Commissioner. CAV also tells people who contact it in relation to this matter that landlords and agents must comply with the notification and behaviour requirements in the Act,[13] not cause any damage to the tenant’s goods upon entry, and take all reasonable steps to ensure that the tenant has quiet enjoyment of the property.[14]
3.12 An alternative reading of the Act is that landlords and agents do not have a right to enter for the purpose of taking photographs or videos for advertising purposes. That is to say, the Act should be read narrowly, only allowing a landlord or agent to bring a person who has displayed a genuine interest in leasing or buying the property to inspect it in person.
3.13 This reading is consistent with the findings of the Victorian Civil and Administrative Tribunal (VCAT) in relation to open house inspections. VCAT has interpreted the right to enter to show the property to mean that the landlord may ‘conduct private inspections of the premises in respect of particular prospective buyers or tenants.’[15] The provision was found not to authorise open house inspections without the tenant’s consent.[16]
Other states and territories
To show the property in person
3.14 In Victoria, the Act simply states that a right of entry may be exercised if ‘entry is required to show the premises to a prospective tenant…[or buyer]’.[17]
3.15 The corresponding legislative provision of all other states and territories refers to an ‘inspection’ of the premises or the number of occasions upon which prospective tenants and buyers may visit. In Western Australia, for example, the Residential Tenancies Act 1997 (WA) says that the landlord may enter the premises:
for the purpose of showing the premises to prospective tenants, at any reasonable time and on a reasonable number of occasions during the period of 21 days preceding the termination of the agreement.[18]
3.16 These provisions appear to relate only to an inspection of the property in person and not to entering in order to show the property in advertising material.
3.17 The Tenants’ Union of NSW advises tenants that entering to take photographs without consent is not permitted. After listing the circumstances in which landlords and agents may enter a rental property in accordance with the Residential Tenancies Act 2010 (NSW),[19] the Tenants’ Union advises that:
no provision is made for access for the purposes of taking photographs of the premises for use in advertisements, erecting ‘for sale’ signs, conducting an ‘open house’ or conducting an auction. You may refuse access for these purposes.[20]
For a genuine purpose
3.18 In South Australia, landlords and agents may enter a rental property for a genuine purpose. If they do so without obtaining the tenant’s consent, they must provide written notice to the tenant no fewer than seven and no more than 14 days before entering.
The written notice must state the purpose for entry and the date and time that entry will occur.[21]
3.19 In relation to photographs and videos of tenants’ possessions, the South Australian Government website provides the following advice to landlords:
You may take photographs or video footage to advertise a property for sale. The tenant can refuse to have their personal possessions photographed or videoed. A photograph of an area not identifying the tenant’s possessions is acceptable e.g. [the] bathroom.[22]
3.20 The legal basis for this advice is not clear. It may be based on the view that landlords and their agents can enter to take advertising photographs and videos because it is sufficiently incidental to the right to show the property in person and/or because it amounts to a genuine purpose for entry. However, any right of landlords to take advertising images that contain tenants’ possessions, and to subsequently use such images, may also be limited by the tenant’s statutory right to quiet enjoyment.[23]
Question
7. Does the law in relation to the right to enter to show the property to a prospective tenant or buyer need clarification? Should landlords and agents have a right to enter to take photographs and videos for advertising purposes, or should the right be restricted to visits in person?
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Radaich v Smith (1959) 101 CLR 209, 222 (Windeyer J).
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Ibid.
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The residential tenancy legislation of Victoria, the ACT and Tasmania does not contain an express provision permitting entry by landlords or agents without the tenant’s consent in the event of an emergency. However, section 91A of the Residential Tenancies Act 1997 (Vic) states that landlords must not, without reasonable excuse, enter rented premises other than in accordance with the entry provisions in the Act. Entry for an emergency is likely to constitute a reasonable excuse. Schedule 1 clause 76(d) of the Residential Tenancies Act 1997 (ACT) states that the lessor must not have access to the premises other than for the purpose of carrying out urgent repairs or for health or safety reasons in relation to the premises. It is likely that entry for an emergency will fall within the confines of this provision. The Residential Tenancy Act 1997 (Tas) s 56(2)(a) lists the grounds on which a landlord or agent can enter the premises without the tenant’s consent. These grounds include where there is a risk to the tenant or another person present on the premises. New South Wales, Queensland, Northern Territory, Western Australia and South Australia all contain express provisions relating to the entry of landlords in the event of an emergency. These provisions can be found in the Residential Tenancies Act 2010 (NSW) s 55(1)(a), the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 192(1)(k)–(l), the Residential Tenancies Act 1999 (NT) ss 72(a)–(b), the Residential Tenancies Act 1987 (WA) s 46(2)(a) and the Residential Tenancies Act 1995 (SA) s 72(1)(a), respectively.
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Residential Tenancies Act 1997 (Vic) s 86; Residential Tenancies Act 2010 (NSW) s 55(2); Residential Tenancies Act 1997 (ACT) sch 1 cls 77–82; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 192(1)(a)–(i); Residential Tenancies Act 1999 (NT) ss 69–71; Residential Tenancies Act 1987 (WA) ss 46(2)(b), (e)–(g); Residential Tenancies Act 1995 (SA) s 72(b)–(h); Residential Tenancy Act 1997 (TAS) ss 56(3), (4), (4B).
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Residential Tenancies Act 1997 (Vic) pt 2 div 8.
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Ibid s 91A.
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Ibid s 85.
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Ibid s 86.
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Ibid ss 85, 88.
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Ibid s 87.
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Ibid s 26.
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014).
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See [3.6] and [3.7] for more on the notification and behavioural requirements.
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Information provided to the Commission by Consumer Affairs Victoria (26 February 2014). See also Consumer Affairs Victoria, Landlord or owner entry to the property (28 April 2014) <http://www.consumer.vic.gov.au/housing-and-accommodation/renting/standards-repairs-and-entry-rights/landlord-or-owner-entry-to-the-property>.
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Information provided to the Commission by the Victorian Civil and Administrative Tribunal (4 March 2014).
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Ibid.
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Residential Tenancies Act 1997 (Vic) ss 86(1)(a)–(b).
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Residential Tenancies Act 1987 (WA) s 46(2)(f). See Appendix A: Right to enter for the provisions of all of Australia’s states and territories.
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Residential Tenancies Act 2010 (NSW) ss 55–56.
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Tenants’ Union of NSW, Tenants’ Rights Manual: A practical guide to renting in NSW <http://www.legalanswers.sl.nsw.gov.au/guides/tenants_rights_manual/during_tenancy/access_privacy.html>.
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Residential Tenancies Act 1995 (SA) s 72(1)(i).
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Government of South Australia, Selling or purchasing a private rental property (1 May 2014) <http://www.sa.gov.au/topics/housing-property-and-land/buying-and-selling/finding-a-house-to-buy/rental-property>.
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Residential Tenancies Act 1995 (SA) s 65(1)(b).
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