Ontario Realtors taking pictures to market a rental property---Legal?

From time to time a landlord will decide that they wish to sell their rental unit while the tenant remains in possession of the unit.   This is perfectly lawful.   A landlord may list a rental unit for sale and indeed, may sell the property to a new person without the tenant's agreement or permission.  The new owner, once the deal closes, steps into the shoes of the seller and becomes the new landlord of the tenant.  Once the sale of the property occurs the former owner ceases to be the landlord and the new owner assumes the obligations of the former owner from the date of acquiring the property.  The new owner/landlord is required to honour the same terms and conditions of the tenants lease as the change in ownership does not give the new owner the right to unilaterally change lease terms with the existing tenants.

The process of listing a property for sale raises some serious practical concerns with respect to the tenant's privacy.   It comes up in this context.  A real estate agent's typical approach when listing a property for sale is firstly to sign a listing agreement that allows the realtor to market the property and reflects the landlord's consent to deal with the rental property for that purpose.  The realtor, being contractually obligated to sell and market the property,  will reach out to the tenant and seek to establish a relationship and process for gaining access to the rental unit for the purpose of marketing the unit and showing the unit to prospective purchasers.   The manner in which the real estate agent does this is often just a reflection of their own experience and manner in dealing with people.  There is no specific legal way that realtors are required to approach tenants.  While the Residential Tenancies Act provides rules relating to giving notice of entry to the rental unit (section 27 RTA), the reality is that the notice of entry provisions are woefully inadequate and do not address the practical realities of showings and the disruption that the showings may cause to the tenants' reasonable enjoyment of the rental unit.

The legal requirements of the Residential Tenancies Act (RTA) are technically satisfied if a realtor gives a tenant 24 hour notice of entry in writing.  However, and the fact is, that a tenant will likely become increasingly annoyed and less cooperative with multiple notices of entry and upset with the disturbance caused by repeated entries to the unit with strangers looking at buying the property. [the lack of cooperation can take many forms including not making the unit presentable for showing or perhaps not being very hospitable when people come to see the place]  It really does make sense for realtors to go above and beyond the strict (and minimal) notice requirements of section 27 RTA and to try to establish acceptable and reasonable times for entry that respect the tenant(s) as much as possible.   It is not a one way street however, and tenants should recognize that the landlord has a legal right to enter and show the unit for sale and interference with that right could lead to termination and eviction.  Working together towards a reasonable compromise should be the mutual objective of realtor/landlord and tenant.

CONFLICT--re taking pictures for marketing purposes

A significant source of conflict can arise when the realtor gives notice to enter a rental unit for the purpose of taking photographs and video of the inside of the unit.  The purpose of the photos and video is typically to upload to realtor.ca or similar real estate marketing websites to show the property to prospective purchasers.   The conflict/anxiety for some tenants is that the video and photographing process captures images of their personal items, and identifying items, that will then be viewable on the internet.   Many tenants consider this a massive privacy violation and object to photos being taken.  Some tenants are horribly embarrassed when they see pictures of their unit on the internet (and their friends see it too) and those photos reveal intimate details of their personal life.  Realtors (and hence landlords) are understandably upset if taking photographs and video is prohibited by tenants who object on privacy grounds.  Such an objection curtails marketing efforts and hence the ability to get the most money for the property.

The issue of taking photographs has until now, been mainly discussed in two binding and authoritative appellate decisions from the Ontario Superior Court of Justice, Divisional Court.  These cases and numerous decisions of the Ontario Landlord and Tenant Board following have evolved into an almost binary approach to the permissibility of taking pictures and video.   The two Divisional Court cases are: Nickoladze v. Bloor Street Investments 2015 ONSC 3893 (CanLII) and Juhasz v. Hymas, 2016 ONSC 1650 (CanLII).

The Nickoladze decision stands for the proposition that a tenant's privacy rights are not engaged when a landlord seeks entry for the purpose of inspecting the rental unit for its condition and taking photographs in furtherance of that ground of entry.  The ground of entry referred to in Nickoladze is in section 27(1)(4) RTA.  Because the RTA authorizes a landlord to enter a unit for inspection it was determined that the taking of photographs in furtherance of that purpose was acceptable and hence a tenant does not have a right to object to the taking of photographs.  Photos and video taken pursuant to this entry ground are typically used in hearings as evidence or to show to contractors for the purpose of getting quotes to do repairs and maintenance.

Juhasz, on the other hand, is an appellate case with a completely different outcome.  In this case a tenant objected to a realtor wishing to enter the rental unit to take photographs/video for the purpose of marketing the rental unit (and uploading the photos and video to marketing websites including www.realtor.ca).   The tenant refused the landlord taking photos and the question was whether the tenant could be evicted for interfering with and prohibiting the taking of photos by the realtor.

In Juhasz, the Divisional Court, focused on section 27(1)(5) as the ground for entry (and giving notice).  That section referred only to the existence of a reasonable reason in the tenancy agreement for entry.   Given that Juhasz eventually stands for the proposition that realtors can't take photos if the tenant objects it is quite unfortunate that the Court in Juhasz was never engaged to consider section 27(2) RTA.  [a point for perhaps another day].

The Juhasz decision stands for the proposition that the tenant's privacy right is engaged when a landlord seeks to enter a rental unit for the purpose of taking photographs and video for marketing purposes.  The Court held that because the privacy right was engaged that the tenant could indeed object (i.e. refuse) and that objection could not be the basis for termination of the tenancy.   While in my view the decision is more nuanced than this blunt summary suggests, the application of the legal reasoning in Juhasz in the many Landlord and Tenant Board decisions afterwards citing Juhasz reveals a rather binary approach to photos.  If the photos are for inspection (i.e. Nickoladze) then the landlord may take photos, but if the photos were going to be for marketing the rental unit for sale (i.e. Juhasz) then the landlord may not take photographs.   As a result, tenants who objected to marketing photos and videos could make sale more difficult and perhaps even stymie the sale process.   Preventing the sale (especially of single unit rentals--i.e. single family homes, duplexes, small apartment buildings) could also increase the chances of a rental unit not being purchased by someone who might seek to terminate the tenancy for purchaser's own use.

Hence, the Juhasz precedent has been an effective wrench in a landlord's desire to actively market a rental unit on the internet for sale (notwithstanding the nuanced language within the decision).

SOMETHING NEW!--the SOFTENING OF JUHASZ

It remains to be seen how this recent decision of the Court will affect the interpretation of Juhasz.  The case is Arseneault v. Dogra, 2023 ONSC 763.

In this decision the Court makes the clear point that Juhasz is not an absolute prohibition on photographing a rental unit for the purposes of marketing it for sale.  The Court indicates that the "facts" really matter and that the privacy elements and concerns need to be strongly engaged and the tenant must object to the photos being taken.  There is no absolute prohibition on taking of photographs.

Even if the tenant objects to photos being taken (and identifies privacy concerns), the Court in Arseneault allows that privacy concerns can be addressed through methods such as photoshopping the media to remove the personal identifying items.   The Court here, in my view, is aiming for a cooperative approach between landlords/realtors and tenants and a working together to get the media that supports the landlords objective of marketing while protecting the tenants objective of privacy.

The Arseneault v. Dogra case is not a wholesale revisiting of Juhasz but I think it represents a modification or clarification of how Juhasz has been interpreted as an outright prohibition on the taking of video and photos if a tenant objects.   I think it is now clear that landlords/realtors may take photos but there must be great sensitivity to privacy concerns and that active steps need to be taken to protect those privacy concerns--with photoshopping as an example of how to prevent a privacy violation.   Accordingly, I think the LTB decisions that have been rather absolute with respect to the application of Juhasz will now need to be more inquiring of the privacy rights being sought to be protected and how the landlord/realtor was prepared to accommodate while seeking to market the property for sale.