Photographing and Filming Tenants’ Possessions for Advertising Purposes: Consultation Paper

4. Right to quiet enjoyment

4.1 The residential tenancy legislation of every state and territory enshrines the right of tenants to quiet enjoyment.^[1] Unlike every other Australian jurisdiction, the right to quiet enjoyment in Victoria is confined to its common law meaning. In all other jurisdictions, the residential tenancy legislation expands the right to quiet enjoyment so that it also includes the right to reasonable peace, comfort and privacy.^[2]

4.2 In relation to advertising photographs and videos that contain tenants’ possessions, the question is whether taking or publishing such images without a tenant’s consent breaches their right to quiet enjoyment.

Victoria

4.3 Section 67 of the Residential Tenancies Act 1997 (Vic) states that a ‘landlord must take all reasonable steps to ensure that the tenant has quiet enjoyment of the rented premises during the tenancy agreement.’ The content of this right is found in common law.

Common law

4.4 The right to quiet enjoyment encompasses the tenant’s right to possess the property and to enjoy it for all usual purposes.^[3] A breach of quiet enjoyment will be found where the landlord, or people lawfully claiming under the landlord, have substantially interfered with the ordinary and lawful enjoyment of the property.^[4] This is so even if neither the title to the land nor the possession of the land are otherwise affected.^[5]

4.5 Whether the landlord’s interference is substantial is a question of fact and degree.^[6] Breaches typically involve physical interference, such as removing doors and windows^[7] or disconnecting the electricity supply.^[8] However, non-physical acts that detract from the quality of possession may also amount to a breach of the right to quiet enjoyment.^[9] Examples of this include regular excessive noise;^[10] reduced visibility and light from a hoarding erected in front of a shop;^[11] and billowing smoke from a defective exhaust and air conditioning system.^[12]

4.6 Building an external staircase that passed the tenant’s bedroom and interfered with the tenant’s privacy was not deemed a breach in Browne v Flower.^[13] Justice Parker stated that a breach of the right to quiet enjoyment requires physical interference and that ‘a mere interference with the comfort of persons using the demised premises by the creation of personal annoyance such as might arise from noise, invasion of privacy or otherwise is not enough.’^[14] However, the legal reasoning underlying that decision has not been followed in more recent cases.^[15] As already noted, it has since been held that non-physical interference, including regular excessive noise, can amount to a breach.

4.7 Rendering a rental property less secure from thieves may constitute a breach of the right to quiet enjoyment. In Lend Lease Development Pty Ltd v Zemlicka (‘Lend Lease’), the tenant was entitled to recover damages from the landlord after a thief gained access to the tenant’s property as a result of demolition works undertaken by the landlord in an adjoining property.^[16]

4.8 A landlord’s deliberate and persistent attempt to drive the tenant out of the property through persecution and intimidation, including threats of physical eviction and the removal of her belongings, was found to be a breach of quiet enjoyment.^[17] In that case, Lord Justice Pearson observed:

that course of conduct by the landlord seriously interfered with the tenant’s proper freedom of action in exercising her right of possession, and tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed …^[18]

4.9 In 2013 in Jones v Director of Housing, the Victorian Civil and Administrative Tribunal (VCAT) was asked to consider whether taking photographs inside a property in order to create a record of the property’s condition was a breach of the tenant’s right to quiet enjoyment. VCAT held that neither taking the photographs nor requiring the tenant to move his belongings out of view before the photographs were taken amounted to a breach. In that case, the landlord’s agent was found to have entered in accordance with the landlord’s duty to maintain the property in good repair. VCAT noted that the purpose of the photographs was to accurately record the condition of the property, the tenant’s belongings would not feature in the photographs, and that, to the extent the tenant’s belongings were visible in the bathroom and kitchen, the tenant could easily remove them.^[19]

4.10 Notwithstanding the development of the common law on the right to quiet enjoyment, the cases referred to above suggest that there is limited scope to argue that the taking or use of advertising photographs and videos that contain tenants’ possessions would amount to a breach of that right.

Other states and territories

Right to reasonable peace, comfort and privacy

4.11 With the exception of Victoria, every state and territory in Australia enshrines the right of tenants to reasonable peace, comfort and privacy.^[20] In NSW, for example, the Residential Tenancies Act 2010 (NSW) states:

50. Tenant’s right to quiet enjoyment

(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord…

(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises…^[21]

4.12 Although the Commission has not found a definitive statement of the meaning of ‘reasonable peace, comfort and privacy’, it is undoubtedly broader than the common law concept of quiet enjoyment. In Ingram v Department of Housing (Tenancy), counsel for the tenant argued that the words ‘reasonable peace, comfort and privacy’ appear to be ‘an expansion of the quiet enjoyment protection as a breach of “comfort and privacy” may not necessarily also constitute a breach of quiet enjoyment.’^[22] The NSW Consumer, Trader and Tenancy Tribunal agreed that the words ‘import a wider duty than is contained in the common law formulation of quiet enjoyment’ and that ‘those words clearly have their natural meaning.’^[23]

4.13 In South Australian Housing Trust v B, the South Australian Residential Tenancies Tribunal held that the ‘requirement for peace, comfort or privacy is to be judged objectively by an external standard, and that external standard is the standard of reasonableness.’^[24] Member Rymill went on to describe ‘privacy’ as ‘an inanimate thing that can be breached by prying or eavesdropping, or similar.’^[25] In relation to ‘comfort’, Member Rymill noted

that ‘it applies to more than the physical ease of a person, and it may well apply to a person’s mental faculty. A person may feel uncomfortable because of fear, or apprehension of an imposition.’^[26]

4.14 In 2007, the NSW Consumer, Trader and Tenancy Tribunal held that the act of an agent ‘remaining in the premises taking photographs once it was clear that the tenant did not consent … amounts to a breach of the tenant’s right to quiet enjoyment.’^[27] The member described the breach as ‘a serious one,’ noting that the agent should have been aware of his statutory obligations.^[28] However, the Notice of Order does not provide the facts of the case, nor does it indicate how the member came to that decision.^[29] Without more information, including, importantly, the reason the photographs were being taken, it is not possible to comment on the extent to which the reasonable peace, comfort and privacy component of the right to quiet enjoyment impacted upon the decision in that case.^[30]

4.15 Although tenants in Victoria do not enjoy an explicit right to privacy in the Residential Tenancies Act 1997 (Vic), the right is implicit in at least one provision of the Act. In Jones v Director of Housing,^[31] the tenant argued before VCAT that taking photographs when exercising the right to enter to maintain the property in good order was unreasonable because it breached his right to privacy in his home. Member Grainger noted that, while the Act does not give a tenant a right to privacy in and of itself, ‘if a landlord or landlord’s agent significantly disregards the privacy of a tenant when exercising a right of entry, the landlord may not be exercising the right of entry in a reasonable manner.’^[32] Opening drawers in a tenant’s bedroom during a routine inspection was an example of behaviour that could be deemed unreasonable.^[33]

4.16 While Victorian tenants do not have a right to reasonable peace, comfort and privacy, they have an obligation not to interfere with the reasonable peace, comfort and privacy

of their neighbours. Section 60(2) of the Residential Tenancies Act 1997 (Vic) states:

A tenant must not—

(a) use the rented premises or common areas; or

(b) permit his or her visitors to use the rented premises or common areas; or

(c) otherwise permit the use of the rented premises—

in any manner that causes an interference with the reasonable peace, comfort and privacy of any occupier of neighbouring premises.

1. Residential Tenancies Act 1997 (Vic) s 67; Residential Tenancies Act 2010 (NSW) s 50; Residential Tenancies Act 1997 (ACT) s 71(1)(c), sch 1 cl 52; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 183; Residential Tenancies Act 1999 (NT) s 65; Residential Tenancies Act 1987 (WA) ss 44(2)(a)–(c), 59E(1); Residential Tenancies Act 1995 (SA) s 65(1)(a)–(b); Residential Tenancy Act 1997 (Tas) s 55. See Appendix B: Quiet enjoyment.

   ↑

2. See Appendix B: Quiet enjoyment.

   ↑

3. Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15, 23.

   ↑

4. Ibid; Sanderson v The Mayor of Berwick-Upon-Tweed (1884) 13 QBD 547, 551.

   ↑

5. Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15, 23.

   ↑

6. Sanderson v The Mayor of Berwick-Upon-Tweed (1884) 13 QBD 547, 551; Southwark London Borough Council v Mills [1999] 3 WLR 939, 945 (Lord Hoffmann).

   ↑

7. Lavender v Betts [1942] 2 All ER 72.

   ↑

8. Perera v Vaniyar [1953] 1 WLR 672.

   ↑

9. Kenny v Preen [1963] 1 QB 499, 513 (Pearson LJ); Southwark London Borough Council v Mills [1999] 3 WLR 939, 945 (Lord Hoffmann), 957 (Lord Millett).

   ↑

10. Southwark London Borough Council v Mills [1999] 3 WLR 939, 945 (Lord Hoffmann).

    ↑

11. Spathis v Hanave Investment Co Pty Ltd [2002] NSWSC 304 (10 May 2002).

    ↑

12. Battick Pty Ltd v Hawkesbury Nominees Pty Ltd [1999] ACTSC 55 (8 June 1999).

    ↑

13. Browne v Flower [1911] 1 Ch 219, 228.

    ↑

14. Ibid.

    ↑

15. Kenny v Preen [1963] 1 QB 499; Spathis v Hanave Investment [2002] NSWSC 304 (10 May 2002).

    ↑

16. Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207. In this case, the landlord was found to have breached the obligation not to derogate from the grant. However, it has since been held that: ‘there seems to be little if any difference between the scope of the covenant [for quiet enjoyment] and that of the obligation which lies upon any grantor not to derogate from his grant. The principle is the same in each case: a man may not give with one hand and take away with the other’: Spathis v Havane Investment [2002] NSWSC 304 (10 May 2002) [152]. See also Peter Butt, Land Law (Thomson Reuters, 6th ed, 2010): ‘The precise limits of the non-derogation principle are unclear…[f]requently it overlaps with the covenant for quiet enjoyment – although the two covenants do not always overlap’ (at 323–324).

    ↑

17. Kenny v Preen [1963] 1 QB 499, 513 (Pearson LJ).

    ↑

18. Ibid.

    ↑

19. Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 (31 December 2013) [27] (Member Grainger).

    ↑

20. Residential Tenancies Act 2010 (NSW) s 50; Residential Tenancies Act 1997 (ACT) sch 1 cl 52; Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 183(2); Residential Tenancies Act 1999 (NT) s 65(b); Residential Tenancies Act 1987 (WA) ss 44, 59E; Residential Tenancies Act 1995 (SA) s 65; Residential Tenancy Act 1997 (TAS) s 55.

    ↑

21. See Appendix A: Right to enter.

    ↑

22. Ingram v Department of Housing (Tenancy) [2002] NSWCTTT 84 (8 May 2002) (citing C Ronalds of counsel).

    ↑

23. Ibid (Member Sheehan).

    ↑

24. South Australian Housing Trust v B [2005] SARTT 5 (14 January 2005) (Member Rymill).

    ↑

25. Ibid.

    ↑

26. Ibid.

    ↑

27. Notice of Order RT 07/28086, Consumer, Trader & Tenancy Tribunal (Member Rosser) 1.

    ↑

28. Ibid.

    ↑

29. The NSW Civil and Administrative Tribunal informed the Commission on 14 March 2014 that no further information on this case is available.

    ↑

30. Notice of Order RT 07/28086 was a case concerned with the Residential Tenancies Act 1987 (NSW). Although this Act has since been superseded by the Residential Tenancies Act 2010 (NSW), the provisions relating to quiet enjoyment are similar.

    ↑

31. Jones v Director of Housing (Residential Tenancies) [2013] VCAT 2184 (31 December 2013) [17]–[18].

    ↑

32. Ibid [25].

    ↑

33. Ibid.

    ↑