Push to give landlords and agents a right to photograph and film tenants’ possessions

By Deborah Kliger, Law Graduate, MST Lawyers

The Victorian Law Reform Commission (“VLRC”) recently issued a report on the ability of landlords and agents to enter rental properties without the tenants’ consent and photograph or film their possessions for advertising purposes. The report was handed down in response to concerns raised by the Tenants Union of Victoria (“TUV”). In particular, the TUV expressed concern that there is no legal basis for taking and using images of tenants’ possessions. In its report the VLRC proposed that landlords and agents should be given an express right to photograph and film tenants’ possessions.

Entering rental properties without tenants’ consent:   

Landlords and agents may enter properties without tenants’ consent only on the grounds set out in the Residential Tenancies Act 1997 (Vic) (“RTA”). For example landlords and agents may enter to show the property to a prospective buyer without tenants’ consent.  Entry for the purposes of taking advertising images is not a ground listed in the RTA. Accordingly, the VLRC concluded that entering rental properties to photograph and film tenants’ possessions is unlawful.   

Endorsement of a right to take advertising images: 

In assessing whether landlords and agents should have such a right, the VLRC gave considerable weight to agents’ commercial interests.  The VLRC recognised that photographs are a crucial component of online property advertising. Therefore the VLRC recommended that landlords and agents be given a right to enter rental properties to take advertising images.

Protecting tenants from theft and family violence:

Tenants were primarily concerned that photographs of artworks and other valuable items may place them at a risk of theft. Concerns were also raised by tenants who have fled family violence. In order to guard against the risk of theft and family violence the VLRC proposed that:

1. Landlords and agents must not take, or permit to be taken, an advertising image where the tenant objected in writing because it would show:
   1. a possession that directly identifies the tenant or occupant;
   2. a possession that reveals sensitive information about the tenant or occupant; or
   3. a valuable possession which places the tenant at a heightened risk of theft

And it would be unreasonable to expect the tenant to remove or conceal the possession.      

         2.   Landlords and agents must not take, or permit to be taken, an advertising image to which the tenant has objected in writing because:

1. 1. the tenant or other occupant is at risk of family or personal violence; and

   2. the image would show possessions that may reveal the identity of the tenant or occupant to the person posing the risk.

Giving tenants adequate notice:

Under the current laws, landlords and agents are required to give tenants written notice at least 24 hours prior to entering properties on the grounds listed in the RTA.

The VLRC proposed that landlords and agents should be required to give tenants at least 7 days written notice before entering to take advertising images.  The VLRC proposed that landlords and agents should only be allowed to enter to take advertising images between 8:00am and 6:00pm unless the tenant agrees otherwise.

Further, the VLRC proposed that landlords and agents should be required to include the following information in a notice of entry to take advertising images:

1. the date, time and purpose of entry;
2. the name and contact details of the landlord/agent;
3. the tenant’s rights to be present when images are taken, remove possessions from view and object to images being taken in certain circumstances.

Time limit for using advertising images:

The VLRC recommended that advertising images taken more than 12 months ago should only be used by landlords and agents with tenants’ written consent.      

We will have to wait and see if these proposals become law. In the meantime, in order to avoid disputes landlords and agents should arrange to take advertising images with the tenant present. This allows tenants to state the possessions (if any) that should be removed from view.  

For more information, please contact our Property & Leasing team by email property@mst.com.au or by telephone +613 8540 0200.