Can a Landlord Take Pictures of An Apartment Occupied By a Tenant?

A Landlord May Enter, With Proper Notice, An Occupied Apartment With the Intent of Taking Pictures If the Pictures Are For the Purpose of Assisting the Landlord With the Maintenance and Repair of the Premises. Taking Pictures For Other Purpose, Without Consent, Is Unlawful.

A Helpful Guide On How to Determine Whether the Tenant Holds a Right to Privacy That Requires the Landlord to Refrain From Entering to Take Pictures of a Tenanted Unit

Lease Agreement Document A landlord may seek to obtain images or photographs of rental unit while occupied by a tenant for various reasons. The reasons that the landlord seeks images or photographs may seem reasonable and innocuous. For example, the landlord may be seeking the images for use within a virtual tour when marketing or promoting the premises during efforts to sell the property, or other purposes. This request may be without any illicit intent; however, a landlord must obtain the consent of the tenant prior to taking and using images of the tenanted rental unit so to protect the privacy of the tenant.

Privacy Concern
What Rights to Personal Privacy Do Tenants Have?

In regards to possible privacy issue concerns, the nature of the personal belongings of a tenant may provide significant details about the tenant; and accordingly, the tenant may prefer that such details be kept private.  For example, the nature and quality of personal belongings may demonstrate whether the tenant is frugal, and perhaps of limited means, or is otherwise extravagant, and perhaps of substantial means.  Furthermore, and among other concerns, a tenant may be exposed to various security risks arising from the availability of images showing the layout of the rental unit.

The Law
What Is Said By the Courts?

The right to privacy of a tenant was the issue within the case of Juhasz v. Hymas, 2016 ONSC 1650 which decided that a landlord lacks a unilateral right to take photographs of a tenanted unit and use such photographs for the purpose of creating and publishing a virtual tour as an online sales tool when listing the property for sale. The court ruling within the Juhasz case deemed that while a landlord is permitted, with proper notice provided, to enter a unit occupied by a tenant and to take photographs for use that aids in maintenance and repairs, the landlord is without a right to enter a unit occupied by a tenant to take photographs for the purpose of aiding the selling of the property. The Divisional Court specifically stated:

[26]  The Divisional Court recently considered the issue of entering a tenant’s premises for the purpose of taking photographs in the context of a dispute raised by the tenants about appropriate repairs and maintenance of the rental unit: see Nickoladze v. Bloor Street Investments/Advent Property Management, 2015 ONSC 3893 (CanLII).  In that context, the decision upheld the right to take photographs as to the maintenance and repairs of the unit: see, for instance, paras and of that decision:

8.  While it might be prudent for a landlord to expressly state in a notice to enter a rental unit that photographs may be taken, the failure to do so does not render the entry unlawful.  Section 27 of the RTA expressly authorizes a landlord to enter a rental unit for the purposes of conducting an inspection and that it is what happened in this case.  The entry was therefore lawful.

9.  Further, the fact that photographs were taken does not, by itself, constitute an infringement of the tenant’s privacy rights.  It would only constitute an infringement if it was done for an improper purpose.  In this case, the Board determined that the photographs were taken for the purpose of the inspection and for use at the hearing of the tenant’s outstanding applications.  It was open to the Board, on the evidence, to reach that conclusion.  In this day and age, it is not at all surprising that either a tenant or a landlord would take pictures of relevant items in order to use them at a hearing before the Board.  Indeed, I understand that, on a prior occasion, the tenant had done precisely that to advance his position.

[27]  The Nickoladze decision is distinguishable from this case. In Nickoladze, the tenant raised issues about his privacy interest being compromised. Justice Nordheimer concluded that, as the photographs were taken in the context of a proceeding before the Board initiated by the tenant, no privacy interest was engaged.  We also note that this decision was in relation to an inspection of the rental unit, an activity which is a specifically permitted ground for entry pursuant to s. 27(1)(4) of the RTA.

[28]  We distinguish the decision of Nordheimer J. in Nickoladze. By way of contrast, in this case, taking photographs of a person’s home and personal belongings without their consent and posting these photographs on the internet clearly infringes privacy interests. In this case, a privacy interest is clearly engaged – an interest enhanced, perhaps, by the tenant’s disability of a post-traumatic stress disorder.

[29]  We agree with the conclusion in the Review Order of the Board in File No. CEL-31023-13-RV (Re) that 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.

Per the Juhasz decision, it is clear that the landlord must obtain permission of the tenant by way of an express agreement within the lease, or by subsequent consent, if the landlord is to enter the premises of the tenant for the purposes of obtaining photographs or images for any purpose other than to assist with the duty of the landlord to perform maintenance and repairs.  Furthermore, it is clear that a refusal to provide consent by the tenant is insufficient as grounds for an eviction.

Summary Comment
What Is the Short Answer?

A landlord must refrain from entering a tenanted unit with the intent of obtaining photographs or images for any purpose other than to obtain such as a means to assist in the duty to maintain or repair the premises.  Obtaining photographs or images for another other purpose, such as to obtain and publish such images for the purpose of assisting in the marketing for sale of the property, appears as a breach of the privacy rights of the tenant.


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