Photographing and Filming Tenants’ Possessions for Advertising Purposes: Report
6. Communication
Introduction
6.1 The importance of good communication was raised throughout the Commission’s consultations.
6.2 Although the absence of an express provision about advertising images in the Residential Tenancies Act 1997 (Vic) (RTA) has undoubtedly contributed to the confusion between the parties involved, a number of agents and landlords highlighted the importance of negotiating with tenants who have concerns about advertising images without resort to the law. As one agent informed the Commission, ‘If we have to rely on the law and apply to VCAT, we have already lost the battle and gone too far. We need that cooperation from the outset.’[1]
6.3 Demonstrating respect for the tenant’s home, properly informing the tenant that images will be taken and working with the tenant to address their concerns were identified by stakeholders as the key factors common to finding a solution that all parties are happy with.
Demonstrating respect for the tenant’s home
6.4 A number of stakeholders expressed the view that good communication requires common courtesy and respect for the tenant’s home.[2]
6.5 One agent said that ‘even though this is a business transaction, it is a very emotional transaction’ for the tenant.[3] As an agent, ‘you cannot have the attitude that the tenant is lower down the ladder than the vendor … we try not to order people around in their homes.’[4]
6.6 Another agent told the Commission, ‘We try to treat everyone, [whether] … landlord or tenant, equally. This is our philosophy—we try very hard to follow that through in all our dealings.’[5]
6.7 Similarly, a landlord said, ‘It is my house but it is their home and I respect that. I always put myself in their shoes.’[6]
6.8 Several agents commented that they would never enter to take advertising images without tenant consent, and the tenants of these agents had never withheld consent.[7]
Advising tenants about advertising images
6.9 Agents said that approaching tenants in a respectful manner about the end of the tenancy and their desire to advertise helps to reduce unnecessary problems when it comes to taking or using advertising images.[8]
6.10 One agent said that she calls the tenant to let them know that the property will go on the market, which she then follows with a letter confirming the conversation. The agent personally advises the tenant to remove family photographs and valuables before any advertising images are taken.[9]
6.11 Another agent informed the Commission that when a property is to be sold, even if it is not his listing, he meets with the tenant to explain the process to minimise ‘conflict between rent and sales’.[10] A property manager said she helped to mediate a dispute in relation to advertising images where the sales agent worked for a different company by negotiating a rent reduction.[11]
6.12 Another agent said he knew of an agency that gave tenants a standard one-page form about advertising images at the end of every lease.[12]
6.13 Some agents inform tenants about advertising images at the beginning of every lease by inserting a term about them into the tenancy agreement.[13] One agent noted that even though a term of this kind is unenforceable, it is ‘common sense to alert people to the fact that photos will be taken’.[14]
6.14 The Commission agrees that it is helpful to advise tenants at the beginning of the lease that the landlord may wish to take advertising images if the property is going to be sold or re-leased. However, it is also concerned that an unenforceable term about advertising images in a tenancy agreement is open to misuse.
6.15 A landlord told the Commission that he instructs his agents not to lease his property to tenants who do not agree to the term authorising the landlord to take advertising images of the property at any time in the future if the property is to be sold or re-leased.[15] Any term that seeks to modify the statutorily enshrined rights of tenants, as that one does, is invalid.[16]
6.16 As such, a term of this kind should clearly set out the rights of each party under the RTA, including the fact that, at present, entry for this purpose must occur within seven days of obtaining the tenant’s consent. Alternatively, the landlord or agent could provide information about advertising images in the information pack that is provided to tenants at the beginning of a lease, rather than in the tenancy agreement.
Negotiating with the tenant
6.17 Agents the Commission consulted with said that where a tenant raises concerns about advertising images that show their possessions, agents should be willing to compromise.[17]
6.18 The Real Estate Institute of Victoria submitted that ‘Where a tenant concern was identified, agents reported they were able to negotiate a compromise solution between the tenant and the landlord.’[18] Examples noted in their submission included using old photographs, waiting until the property was vacant and allowing tenants to review the images before use.[19]
6.19 An agent told the Commission that ‘You can just announce that you are coming in [to take advertising images] but that doesn’t get you very far’ as an agent cannot force a tenant to tidy up.[20]
6.20 One agent described the ‘consultative approach’ she uses, which includes negotiating consent to take advertising images on a room-by-room basis. The agent said, ‘Concessions need to be made when negotiating and you need to be prepared to be flexible.’ According to this agent, poor communication about advertising images has a ‘flow-on effect’, which causes a ‘chain of negativity’ throughout the sales process.[21]
6.21 Another agent expressed the view that tenant concerns often relate to other circumstances in the tenant’s life, such as a relationship breakdown or work stress, and that understanding the underlying reason for a tenant’s concerns may help find a solution that works for everyone.[22]
6.22 Methods used by agents to encourage tenant cooperation include providing a rent reduction, offering to help the tenant find somewhere else to live and offering to support the tenant to stay on if the buyer is an investor.[23]
6.23 One agent reassures her tenants when a property is being sold that she is there to support them. The agent told the Commission, ‘It is a business, but it is a personalised one, so tenants feel genuine trust.’[24]
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Consultation 26 (David Stewart and Leesa Stewart, Market Share Property).
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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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Consultation 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale).
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Ibid.
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Consultation 1 (a real estate agent).
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Consultation 28 (Gina Butera).
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VLRC online survey.
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Consultations 1 (a real estate agent); 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale); 26 (David Stewart and Leesa Stewart, Market Share Property).
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Consultation 9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale).
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Consultation 26 (David Stewart and Leesa Stewart, Market Share Property).
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Consultation 25 (Michelle Evans, senior property manager, Investor’s Choice Property Management).
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Preliminary consultation with members of the Real Estate Institute Victoria (6 March 2014).
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Consultation 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office). VLRC online survey.
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Consultation 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office).
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VLRC online survey.
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Section 27 of the Residential Tenancies Act 1997 (Vic) states that a term of the tenancy agreement is invalid if it purports to exclude, restrict or modify the exercise of a right conferred by the Act.
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Submission 10 (Real Estate Institute of Victoria). Consultations 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office); 26 (David Stewart and Leesa Stewart, Market Share Property).
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Submission 10 (Real Estate Institute of Victoria).
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Ibid.
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Consultation 26 (David Stewart and Leesa Stewart, Market Share Property).
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Consultation 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office).
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Consultation 8 (a real estate agent).
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Consultations 1 (a real estate agent); 7 (Emma Gordon, property management operations manager, Harcourts Victoria Corporate Office);
9 (Caroline Rickard, sales consultant, LJ Hooker Drysdale); 26 (David Stewart and Leesa Stewart, Market Share Property). -
Consultation 17 (a real estate agent).