5 Right to quiet enjoyment

Introduction

  1. 5.1 The Residential Tenancies Act 1997 (Vic) (RTA) enshrines the tenant’s common law right to quiet enjoyment.1
  2. 5.2 The Commission is of the view that taking and using advertising images that show tenants’ possessions without tenant consent would not ordinarily amount to a breach of this right. However, a breach may be found in cases of persistent harassment or significant harm.
  3. 5.3 The legislation of every other state and territory in Australia has redefined the right to quiet enjoyment so that it also includes the right to reasonable peace, comfort and privacy.2 Though relevant to advertising images, granting tenants an express right to reasonable privacy may have ramifications that extend well beyond the taking and use of advertising images. Considering such a reform is thus outside the scope of the Commission’s terms of reference.
  4. 5.4 The Commission is of the view that the reforms it has proposed in Chapters 3 and 4 appropriately and adequately address the privacy concerns of tenants in relation to advertising images.

Current law

Victoria

  1. 5.5 Under the RTA, ‘a landlord must take all reasonable steps to ensure the tenant has quiet enjoyment of the rented premises.’3
  2. 5.6 The common law right to quiet enjoyment encompasses a right to possess the property and to enjoy it for all usual purposes.4 A breach of quiet enjoyment will be found where the landlord or people claiming under the landlord have substantially interfered with the ordinary and lawful enjoyment of the property.5 Substantial interference is conduct that renders the premises ‘unfit from a reasonable point of view for the purpose for which’ the lease was granted.6
  3. 5.7 Historically, only direct physical interference could amount to a breach of quiet enjoyment. Thus, in Browne v Flower, building an external staircase that passed the tenant’s bedroom and interfered with the tenant’s privacy was deemed not to be a breach.7 Justice Parker said that a breach of quiet enjoyment will not be found by ‘mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise’.8
  4. 5.8 However, case law has evolved so that non-physical interference may also amount to a breach.9 In Kenny v Preen, the Court held that a landlord’s deliberate and persistent attempt to drive the tenant out of the property through persecution and intimidation breached the tenant’s right to quiet enjoyment.10 Lord Justice Pearson observed that:

conduct by the landlord seriously interfered with the tenant’s proper freedom of action in exercising her right of possession and tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of the covenant, even if there were no direct physical interference with the tenant’s possession and enjoyment.11

  1. 5.9 In McCall v Abelesz, Lord Denning stated that the covenant for quiet enjoyment ‘is not confined to direct physical interference by the landlord’.12 Lord Denning explained that the covenant:

extends to any conduct of the landlord or his agents which interferes with the tenant’s freedom of action in exercising his rights as tenant … It covers, therefore, any acts calculated to interfere with the peace or comfort of the tenant … ‘13

  1. 5.10 While the notion that non-physical acts may amount to a breach is reflected in Australian common law,14 Lord Denning’s broad statement of the scope of the right to quiet enjoyment is not.15

Taking images inside the property

  1. 5.11 In Jones v Director of Housing, the Victorian Civil and Administrative Tribunal (VCAT) was asked to consider whether taking photographs of the inside of the property in order to record its condition amounted to a breach of the tenant’s right to quiet enjoyment.16 Member Grainger held that neither taking the photographs nor requiring the tenant to remove their belongings from the rooms before they were photographed amounted to a breach.17
  2. 5.12 In reaching this conclusion, Member Grainger observed that the landlord had a right to enter in accordance with the duty to maintain the property in good repair, and that it was reasonable for the landlord to take images to record the condition of the property when doing so. He also noted that ‘there was no evidence that the removal of the belongings would be onerous or time consuming for him.’18
  3. 5.13 According to Member Grainger, VCAT will generally only find that a landlord has breached a tenant’s right to quiet enjoyment if the landlord or agent has entered, or has attempted to enter, other than in accordance with the RTA.19
  4. 5.14 However, the Federal Court has held that a landlord’s conduct, though lawful and necessary, may nonetheless amount to a breach of the tenant’s right to quiet enjoyment.20

Privacy

  1. 5.15 Victorian tenants do not currently enjoy an express right to privacy, although they have an obligation not to interfere with the reasonable peace, comfort and privacy of their neighbours.21 Rooming house residents, caravan park residents and site tenants have a right to privacy, peace and quiet.22
  2. 5.16 According to Professor Bradbrook, the right of tenants to reasonable peace, comfort and privacy was removed from a 1978 draft of the Residential Tenancies Act 1980 (Vic).23
  3. 5.17 However, a right to privacy for tenants is implicit in at least one provision of the RTA. Section 87 states that landlords and agents must exercise their right of entry in a reasonable manner. In Jones v Director of Housing, Member Grainger held that ‘if a landlord … significantly disregards the privacy of a tenant when exercising a right of entry, the landlord may not be exercising the right of entry in a reasonable manner.’24

Other states and territories

  1. 5.18 With the exception of Victoria, the residential tenancy legislation of every state and territory in Australia incorporates an express right to reasonable peace, comfort and privacy within the statutory right to quiet enjoyment.25
  2. 5.19 In New South Wales for example, the Residential Tenancies Act 2010 (NSW) states:

50. Tenant’s right to quiet enjoyment

(1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord …

(2) A landlord or landlord’s agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort and privacy of the tenant in using the residential premises … 26

  1. 5.20 In Ingram v Department of Housing (Tenancy) the NSW Consumer, Trader and Tenancy Tribunal found that the words ‘reasonable peace, comfort and privacy’ ‘import a wider duty than is contained in the common law formulation of quiet enjoyment’ and that ‘those words clearly have their natural meaning.’27

Taking images inside the property

  1. 5.21 In Zia v Bechara, the NSW Consumer, Trader and Tenancy Tribunal held that the act of the agent ‘in remaining in the premises taking photographs once it was clear that the tenant did not consent to this amounts to a breach of the tenant’s right to quiet enjoyment’. Member Rosser ordered the landlord to pay $400 in compensation to the tenant as the breach was deemed a ‘serious’ one.28 
  2. 5.22 However, the purpose for which the images were taken and the agent’s conduct when taking the images is not known. The extent to which the tenant’s express right to reasonable privacy impacted on the Tribunal’s decision is also not known.

Community responses

  1. 5.23 The Commission asked stakeholders about the scope of the right to quiet enjoyment in Victoria and whether taking and using advertising images would amount to a breach of that right.

Scope of the right

  1. 5.24 At the Commission’s roundtable, the Tenants Union of Victoria expressed the view that many tenants struggle to understand the common law notion of quiet enjoyment and what it includes and what it excludes.29 It was of the opinion that expanding the right to quiet enjoyment to include reasonable peace, comfort and privacy would bring the concept into the modern era.30
  2. 5.25 The Tenants’ Union of New South Wales was of the view that the right to peace, comfort and privacy clearly extends beyond the scope of the common law right to quiet enjoyment. It informed the Commission that:

Quiet enjoyment goes to possession and tenure; and peace, comfort and privacy take on their natural meaning, which is clear.31

  1. 5.26 It follows, the Tenants’ Union of New South Wales argued, that the threshold for a breach of reasonable privacy is lower than for a breach of the common law right to quiet enjoyment.32
  2. 5.27 Some suggested that the right to reasonable peace, comfort and privacy could simply be a modern interpretation of the common law right to quiet enjoyment, and that the two could be read consistently.33 This interpretation suggests that reasonable privacy may fall within the scope of the common law right currently enjoyed by Victorians.

Would advertising images amount to a breach?

  1. 5.28 The Tenants’ Unions of Tasmania and the Australian Capital Territory expressed the view that taking or using advertising images of a tenant’s possessions without the tenant’s consent may amount to a breach of the tenant’s right to quiet enjoyment.34 However, as stated above, the right to quiet enjoyment in these states includes an express right to reasonable privacy.
  2. 5.29 As the Tenants’ Union ACT explained, the landlord’s right to enter is limited by the tenant’s right to reasonable privacy, and the dissemination of images that showed tenants’ possessions without their consent would interfere with their reasonable privacy.35
  3. 5.30 The Queensland Residential Tenancies Authority expressed the view that using advertising images of tenants’ possessions without the tenants’ consent would not ordinarily amount to a breach of quiet enjoyment.36
  4. 5.31 According to the Authority, only one of the 14 complaints it received about this issue in the last financial year may have amounted to a breach of the right to quiet enjoyment.37 In that case, the landlord persistently harassed the tenant at the property over several weeks in order to obtain the tenant’s consent to take advertising images that included the tenant’s possessions. The 13 other complaints mostly concerned the display of innocuous household items in advertising images.38

Commission’s conclusions

  1. 5.32 The Commission is of the view that the right to reasonable peace, comfort and privacy extends beyond the scope of the common law right to quiet enjoyment.
  2. 5.33 A breach of quiet enjoyment requires a substantial interference with the tenant’s right to possess the property or to enjoy it for all usual purposes. The Commission is of the opinion that neither taking nor using advertising images of tenants’ possessions without their consent would ordinarily amount to a breach of this right.
  3. 5.34 It is beyond the scope of the Commission’s terms of reference to consider bestowing on Victorian tenants a right to reasonable privacy.


Footnotes

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