4 Notice of entry

Introduction

  1. 4.1 When exercising their statutorily enshrined right to enter without tenant consent, landlords and agents must provide a notice of entry in accordance with the requirements set out in the Residential Tenancies Act 1997 (Vic) (RTA).
  2. 4.2 As stated in Chapter 3, the Commission is of the view that entering to take advertising images should be included in the grounds of entry listed in the RTA. The Commission is also of the view that, in the event that this change occurs, the notice of entry requirements in the RTA should be enhanced to improve the tenant’s understanding of the manner in which the landlord or agent intends to exercise their right of entry, as well as the ability of all parties to address any concerns the tenant might have.

Current law

  1. 4.3 Under the RTA, a landlord may enter a property to take advertising images at any time and for any purpose agreed to by the tenant, provided that entry takes place within seven days of obtaining the tenant’s consent.1 If a landlord or agent enters to take advertising images after obtaining the tenant’s consent, they do not need to provide the tenant with written notice of the entry.
  2. 4.4 Alternatively, a landlord or agent may enter the property without the tenant’s consent at any time between 8 am and 6 pm (except on public holidays) on certain grounds listed in the RTA, as long as the landlord or agent provides written notice of the entry at least 24 hours in advance.2 The notice of entry must state the purpose for entry and be delivered by post or in person to the tenant.3

Proposed reforms

  1. 4.5 A number of stakeholders made suggestions as to how the notice of entry provisions in the RTA could be improved in relation to the taking of advertising images that show tenants’ possessions.

 

Amount of notice

Community responses

  1. 4.6 A number of stakeholders observed that the 24-hour notice period may not give the tenant enough time to prepare a property for advertising images to be taken.4
  2. 4.7 An REIV representative said that, in practice, many agents give more notice if they wish to enter for that purpose, as it is in everyone’s interests to ensure the property is presentable.5
  3. 4.8 However, several tenants reported receiving less than 24 hours notice.6 A teacher who contacted the Commission said that she arrived home from a school function at 10 o’clock at night to find a notice in her mailbox saying the agent would be entering to show the property to a prospective buyer the next morning.7
  4. 4.9 Three, five and seven days were the alternative periods variously suggested by tenants, agents and landlords.8 REIV representatives expressed tentative support for three days notice.9

Commission’s conclusions

  1. 4.10 It is reasonable for tenants to be given an opportunity to remove from view possessions they do not want captured in advertising images. It is also reasonable for the landlord or agent to ask a tenant to do their best to ensure the property is presentable. Twenty-four hours notice will not always be sufficient to carry out these activities.
  2. 4.11 The Commission considers a minimum of seven days notice appropriate where advertising images are to be taken. This would ensure most tenants had one or two non-work days to address any issues they may have.
  3. 4.12 Seven days notice is needed in other states and territories forentry to conduct a routine inspection,10entry for a genuine purpose11and entry to value the premises.12
  4. 4.13 The Commission notes that the provision of the RTA that stipulates that a landlord or agent must give a tenant at least 24 hours notice also stipulates that entry must take place between 8 am and 6 pm on any day except a public holiday.13
  5. 4.14 The Commission recommends that the same time provision be reproduced in the legislation providing for seven days notice, with an additional allowance for tenants to consent to a time of entry outside those hours. For example, a tenant who wishes to be present when advertising images are taken may prefer the images to be taken after 6 pm.14

 

Recommendation

  1. 5 When relying on the grounds of entry in the<strong_em>Residential Tenancies Act 1997<strong_em>(Vic)to enter to take advertising images, the landlord or landlord’s agent should be required to:
  2. (a) provide the tenant with at least seven days notice; and
  3. (b) enter between 8 am and 6 pm except on public holidays, unless the tenant consents to a time of entry outside those hours.

 

Content of notice

Purpose of entry

  1. 4.15 The RTA provides that the notice of entry must ‘state why the landlord or the landlord’s agent wishes to enter’.15
  2. 4.16 While some tenants received written notice of entry when advertising images were to be taken, the notice did not always state that the purpose of the entry was to take advertising images.16 Typically, the notice advised the tenant that the landlord or agent was entering to show the property to a prospective tenant, buyer or lender;17 to have the premises valued;18 or to conduct a routine inspection.19
Community responses
  1. 4.17 The REIV supported the notion that tenants should be advised that advertising images will be taken before agents enter for that purpose. Its submission stated:

Agents should be required to inform tenants prior to an inspection that photographs or videos for advertising purposes may be taken and allow tenants to raise concerns at that time.20

  1. 4.18 Tenants and tenant advocates noted that the range of devices on which images can now be taken means that it is not always clear when photographs or videos are being taken or why they are being taken.21 It is thus not sufficient to assume that because the landlord or agent is present with a device that is capable of capturing images, a tenant knows that a landlord or agent is taking advertising images.
  2. 4.19 For example, a tenant told the Commission that two agents entered her home after telling her they were entering to check what maintenance needed to be undertaken and to conduct a sales appraisal. The agents, one of whom had a laptop, walked through the house separately. The tenant had been told images would be taken but she did not know if the agents were in fact taking photographs or videos and, if they were, for what purpose. The tenant said she had been harassed into consenting to their entry, and she was too fearful of a confrontation to ask them what they were doing.22
 
Commission’s conclusions
  1. 4.20 The RTA stipulates that when exercising a right of entry the landlord or agent must do so in a reasonable manner and not stay longer than is necessary to carry out the purpose of entry.23 A landlord or agent who sought to rely on a notice of entry that did not stipulate that advertising images would be taken would fail to comply with these provisions.
  2. 4.21 Establishing an express right to enter to take advertising images would address this problem. If landlords or agents sought to rely on that ground when entering, it would be clear to tenants that images would be taken.

Time of entry

  1. 4.22 The RTA does not require the notice of entry to state the date or time of entry,24 although entry must occur between 8 am and 6 pm on any day except a public holiday.25
  2. 4.23 The notice of entry template produced by Consumer Affairs Victoria suggests that the landlord or agent include the date and time.26
Community responses
  1. 4.24 Landlords and agents often inform the tenant of the date that entry will take place, if not the precise time. However, the Commission is aware of cases in which written notice was provided without either.27
  2. 4.25 In a government review of the RTA, the TUV argued:

Given that privacy is one of the most contentious issues under the Act, it is not unreasonable that a landlord or agent is required to specify the day and time entry is required.28

Commission’s conclusions
  1. 4.26 The Commission recommends that, when advertising images are going to be taken, the date and time of entry be included in the notice of entry. This would allow tenants to organise their schedule, including taking time off work if they wish to be present when the images are taken.

Additional information to enable parties to address tenant concerns

Community responses
  1. 4.27 The REIV suggested that the notice should include the agent’s contact details so the tenant can easily contact the agent with any concerns.29
  2. 4.28 Industry practice varies in relation to advising tenants in the notice of entry to put away possessions they do not want seen. Some agents said that this should be done as a matter of courtesy, while others were of the opinion that such advice would unnecessarily alarm tenants.30 Thirty-one of the 83 tenants who answered the Commission’s survey question on whether they had been given an opportunity to remove personal possessions from view prior to images being taken, said that they had not.31
  3. 4.29 There was some support among stakeholders for the notice of entry to state where the images will be used, such as on billboards or in online advertising.32 One tenant said they were surprised to find images online, as they had assumed the images would only appear in print.33 Another tenant was surprised to see the images in an article in the property section of her local newspaper.34

Commission’s conclusions

  1. 4.30 The Commission is in favour of enhancing the notice of entry requirements in the RTA to advise tenants of the way in which landlords and agents intend to exercise their right of entry, and the action they can take if they have concerns.

Recommendation

  1. 6 The landlord or landlord’s agent should be required to include the following information in a notice of entry to take advertising images:
  2. (a) the purpose of entry;
  3. (b) the date and time of entry;
  4. (c) the name and contact details of the landlord/agent;
  5. (d) the tenant’s opportunity to remove possessions from view;
  6. (e) the tenant’s right to object to images being taken in certain circumstances; and
  7. (f) the tenant’s right to be present when images are taken.

 

Delivery of notice

  1. 4.31 There was uncertainty among stakeholders as to whether it is lawful for a landlord or agent to deliver a notice of entry via email or any other form of electronic communication.35
  2. 4.32 The Electronic Transactions Act 2000 (Vic) states that where ‘a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of electronic communication’ and the recipient has consented to electronic delivery.36
  3. 4.33 The RTA stipulates that a notice of entry must be in writing.37 However, it also stipulates that a notice of entry must be delivered by post or in person to the tenant.38
  4. 4.34 Where an Act requires a document to be delivered by post, the Interpretation of Legislation Act 1984 (Vic) states that, unless the contrary intention appears, the delivery shall be deemed to be effected ‘by properly addressing, prepaying and posting the document’.39

Community responses

  1. 4.35 A number of stakeholders were in favour of being able to deliver notices of entry via email.40 Some said it would make delivery easier, and others noted that it would address the problem of tenants being unaware a notice had been delivered if they were away or failed to check their mailbox.41
  2. 4.36 A TUV representative expressed concern that, although useful in some respects, electronic delivery could create uncertainty, especially in relation to receipt of notice.42
  3. 4.37 The Electronic Transactions Act 2000 (Vic) states that if the recipient agrees to receive an electronic communication at a particular electronic address, the time of receipt is when it reaches that address.43

Commission’s conclusions

  1. 4.38 The requirement to deliver a notice of entry by post or in person cannot be satisfied by delivering the notice via email or any other form of electronic communication.
  2. 4.39 The Commission considers that the RTA should be amended to enable the electronic delivery of notices of entry. The advent of electronic forms of communication has led to a decline in the use of paper-based mail, particularly among young people. Concerns about the reliability of electronic communication are no greater than concerns about the reliability of paper-based mail, and deeming provisions have been enacted to clarify the time of receipt for both.
  3. 4.40 Queensland’s standard tenancy agreement invites all parties to nominate whether they will receive notices via email or facsimile and, if so, to state the address or number.44 Similarly, South Australia’s standard tenancy agreement invites agents and tenants to write their email address for the service of notice or other documents.45 The Commission is of the opinion that Victoria’s standard tenancy agreement should enable tenants to consent to the electronic delivery of notices of entry.

Recommendations

  1. 7 It should be lawful for the landlord and landlord’s agent to deliver a notice of entry via electronic communication where the tenant has consented.
  2. 8 The standard tenancy agreement should make provision for parties to consent to the delivery of a notice of entry via electronic communication.

 

Where a tenant states they wish to be present

Community responses

  1. 4.41 Many tenants expressed a desire to be present when advertising images were taken.46The Real Estate Institute of Tasmania said it advises agents to encourage tenants to be present to avoid complaints at a later date.47
  2. 4.42 However, as discussed in Chapter 2, some tenants reported that agents had been inflexible when it came to arranging a time for advertising images to be taken.48Others reported that agents had discouraged their attendance.49
  3. 4.43 A number of complaints relating to possessions that tenants did not want seen in advertising images may have been avoided if the tenant had been present when the images were taken.

Commission’s conclusions

  1. 4.44 The Commission is in favour of enhancing the capacity of tenants to be present when advertising images are taken by requiring landlords and agents to negotiate a time that is suitable for the people involved.
  2. 4.45 The Commission was advised of a range of flexible practices landlords and agents had undertaken in Queensland, where tenant consent is needed for the use of advertising images that show tenants’ possessions.50In one case, a photographer took external images during the day, and internal images during the evening after the tenant had returned from work.51
  3. 4.46 In South Australia, where a tenant indicates they wish to be present when a landlord
    or agent enters for certain purposes, the landlord or agent is required to make a reasonable effort to ensure the tenant is present during the landlord or agent’s visit.52
    The Commission is of the opinion that Victorian tenants should enjoy the same flexibility when it comes to entry to take advertising images.

Recommendation

  1. 9 If a tenant states that they wish to be present when advertising images are taken, the landlord or landlord’s agent should be required to make a reasonable effort to arrange for the visit to occur at a time when it is convenient for the tenant to be present (having regard to the work and other commitments of both the tenant and the person entering).

 


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