Although the Residential Tenancies Act 1997 (Vic) (RTA) reflects several decades of debate about how to balance the interests of tenants and landlords, it does not address the practice of entering the leased premises to take or use advertising images of tenants’ possessions.
In 1997, when the Act was adopted, Google did not exist, almost all household internet access in Australia was via dial-up connection, and prospective tenants and buyers found a home by looking at brochures and physically inspecting the property. In today’s digital world, the online distribution of advertising images transcends physical boundaries. While this has enhanced the capacity of owners to reach prospective tenants and buyers, it has also triggered tenant concerns about their inability to control the dissemination of personal and sensitive information, and about their exposure to theft and personal harm.
This report forms part of the Commission’s community law reform program, which enables members of the community to contribute their ideas about how the law could be improved. Under the Victorian Law Reform Commission Act 2000 (Vic), the Commission may initiate inquiries into issues of limited legal size and scope but of general community concern. The Commission initiated this inquiry after the Tenants Union of Victoria expressed concern that the taking and use of advertising images is not supported by a clear legislative framework, leaving tenants uncertain about their rights.
While a number of landlords and agents have been taking and using advertising images of tenants’ possessions without obtaining tenant consent in the belief that it is lawful for them to do so, the Commission is of the opinion that they are mistaken. It is unlawful for a landlord or agent to enter other than in accordance with the RTA and the Commission considers that the RTA does not permit entry for the purpose of taking advertising images without tenant consent.
In this environment, practices have emerged that often leave tenants beholden to the goodwill and professionalism of landlords and agents when it comes to responding to tenants’ concerns. While many landlords and agents fairly negotiate with tenants to address their concerns, too often this is not the case.
In response to this issue, legislators in Queensland have introduced a tenant consent requirement when a landlord or agent wishes to use advertising images that show tenants’ possessions. The Commission is of the view that this unduly restricts the capacity of landlords to advertise their properties effectively.
The Commission’s recommendations adopt a practical middle ground between the current positions in Victoria and Queensland. The Commission proposes that an express right be given to landlords to take and use advertising images, coupled with appropriate safeguards for tenants. In modernising the law, the Commission has sought to maintain a fair balance between the desire of tenants to live in their homes free from unwanted interference, and the desire of landlords to sell and lease their properties.
I wish to thank the many people, including tenants, landlords, real estate agents, community organisations and legal practitioners who gave their time to assist the Commission with this inquiry. In particular, I express my appreciation to Consumer Affairs Victoria, whose director,
Dr Claire Noone, and senior legal policy adviser, Claire Davie, were of substantial assistance to
the Commission in this project.
I would also like to thank my fellow Commissioners, Alison O’Brien and Eamonn Moran PSM QC. Their contribution and expertise were invaluable to this review.
Finally, I thank the community law reform team, Eve Gallagher and Si Qi Wen, for their hard work on this inquiry.
I commend this report to you.
The Hon. Philip Cummins AM
Chair, Victorian Law Reform Commission