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PRIVACY ISSUES WILL REQUIRE LEASE AMENDMENTS

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PRIVACY ISSUES WILL REQUIRE LEASE AMENDMENTS

The Divisional Court has ruled that, in the absence of express, permissive language in a lease, a Landlord may not take photographs of the interior of a rental unit and post the images when listing the unit for sale. In particular, the Court stated:

“…absent a specific term of the lease, or with the tenant’s consent, there is no authority under s. 27 of the RTA to require entry into a tenant’s premise to take photographs for marketing purposes to advance the sale of the property.  It follows that the refusal by a tenant to allow entry for such purpose cannot be proper grounds for eviction.”

Even if the proper language is inserted in a lease, the landlord must still take care to avoid images which capture tenants’ “personal information”, (ie: family photographs). The court noted that it is lawful to take and use photographic images as evidence to support facts asserted in Landlord and Tenant Board (LTB) hearings, but using them for public posting in the context of a real estate listing, without express language in a lease or consent of a tenant, is unlawful. The courts’ decisions are binding on the LTB. The entire decision can be viewed at the following link:http://www.canlii.org/en/on/onscdc/doc/2016/2016onsc1650/2016onsc1650.html .

Landlords and property managers who manage condominium rentals, in particular, should consider amendments or addenda to tenant leases if the intention is to sell the units at some future time and if images of the interior of the unit are considered important for marketing purposes. The lease/addendum would make it clear that in the event the rental unit is to be listed for sale, the landlord shall have the right to enter the unit for the purpose of making images of the interior for marketing purposes. The clause should also provide privacy assurances relative to tenants’ personal information and should use language which expressly refers to the right of entry granted by s. 27 (1) 5 of the Residential Tenancies’ Act, Ontario (RTA).

For existing tenants, landlords and property managers will have to simply rely on obtaining the tenant’s consent because you cannot force the change on sitting tenants. Consideration should also be given to creating a “virtual tour” and still images of units when they are vacant so that there is no need to rely on the exercise of a right of entry when marketing the unit for sale.

Questions? Contact Joe Hoffer, hoffer@cohenhighley.com , Kristin Ley,ley@cohenhighley.com or Mark Melchers, melchers@cohenhighley.com