Photographing and Filming Tenants’ Possessions for Advertising Purposes: Report
1. Introduction
Origins
1.1 On 19 December 2013, the Commission initiated a community law reform project on the photographing and filming of tenants’ possessions for advertising purposes.
1.2 Under section 5(1)(b) of the Victorian Law Reform Commission Act 2000 the Commission may initiate its own inquiries into legal issues of general community concern, provided they are limited in size and scope. The Commission calls these inquiries community law reform projects as it invites community members and groups to contribute proposals for improving Victorian law.
1.3 This project arose out of discussions with the Tenants Union of Victoria (TUV). Landlords, or agents on their behalf, routinely advertise rental properties by displaying images of the properties, many of which contain tenants’ possessions. The TUV informed the Commission that it had received a number of complaints about photographs of tenants’ possessions being included in advertising images without the tenants’ consent.[1]
1.4 The Commission’s preliminary investigation revealed that several complaint-handling bodies had received enquiries about the rights of landlords and tenants in these circumstances. Privacy and Data Protection Victoria noted that the number of enquiries from tenants about possessions being included in images without their consent had increased significantly in recent years.[2]
1.5 This issue is of relevance to a significant number of Victorians. One quarter of Victoria’s 1.95 million households rent and the average length of a tenancy is 18 months.[3] In these circumstances, it is likely that many Victorian households have had, and will continue to have, images of their possessions taken and used for advertising purposes.
Current law in Victoria
Right to enter
1.6 The Residential Tenancies Act 1997 (Vic) (RTA) stipulates that the landlord or agent may enter at any time agreed to by the tenant as long as they enter within seven days of the tenant granting consent.[4] The law is clear on this matter and the Commission’s inquiry is not concerned with situations in which tenants have no issue with landlords or agents entering to take advertising images that show their possessions.
1.7 The central question is whether landlords and agents have a right to enter the property to take advertising images without tenant consent and, on exercising that right, whether they may take images that contain tenants’ possessions.
1.8 At common law, tenants have a right to exclusive possession, which allows the tenant to exclude the landlord and all others from the property.[5] However, the RTA grants landlords and their agents a limited right of entry without tenant consent by listing certain grounds upon which they may enter.[6]
1.9 Entering to take advertising images is not specifically listed as a ground for entry. Entering to show the property to a prospective tenant and entering to show the property to a prospective buyer are listed as grounds for entry.[7] A landlord who wishes to exercise their right to enter on one of the grounds listed must provide written notice to the tenant at least 24 hours in advance.[8]
1.10 A broad reading of the RTA is that entering to take advertising images that contain tenants’ possessions falls within the scope of, or is sufficiently incidental to, two of the grounds listed. However, the Commission is of the opinion that landlords and agents do not currently have a right to enter to take advertising images without the tenant’s consent, for reasons stated in Chapter 3.
Right to quiet enjoyment
1.11 In Victoria, the landlord must take all reasonable steps to ensure the tenant has quiet enjoyment of the property.[9] At common law, the right to quiet enjoyment protects the tenant’s rights to possession and the lawful and ordinary enjoyment of the property.[10]
A breach of quiet enjoyment requires a substantial interference with the right.[11]
1.12 The Commission considered whether taking and using advertising images that show tenants’ possessions without tenant consent would ordinarily amount to a breach of quiet enjoyment, and found that it would not. Therefore, the right to quiet enjoyment does not assist in resolving the issue under consideration.
Our process
1.13 The Commission’s inquiry was led by the Hon. Philip Cummins AM and a Division which he chaired. The Division members were Eamonn Moran PSM QC and Alison O’Brien.
1.14 The Commission conducted preliminary research to identify issues with the law, including an examination of current law and practice in other Australian jurisdictions. It also met with tenant advocates, real estate agents and staff from government agencies. Among these were representatives of the Real Estate Institute of Victoria (REIV) and the TUV.
1.15 In June 2014, the Commission published a consultation paper that reviewed the law and practice and identified possible options for reform.[12] The consultation paper invited people with experience or expertise in this area to make a submission.
1.16 The Commission received 20 submissions, which can be found on the Commission’s website.[13] A list of submissions appears in Appendix A.
1.17 The Commission undertook 38 consultations across Victoria. A list of consultations can be found in Appendix B. Consultees included tenants, tenant advocates, landlords, real estate agents, legal practitioners, academics and relevant government agencies.
1.18 The Commission held a roundtable consultation on 22 August 2014. Participants discussed the current operation of the law and possible reform options. Representatives from the REIV, the TUV and the Victorian Civil and Administrative Tribunal participated in the roundtable. A representative from Consumer Affairs Victoria attended as an observer.
1.19 The Commission also conducted an online survey aimed at tenants, tenant advocates, landlords and real estate agents to obtain the views of individuals most affected by this issue. The survey was publicly available on the Commission’s website from July to September 2014. The Commission received 279 responses. The survey questionnaire is at Appendix C.
1.20 The breakdown of survey respondents is as follows:
• 56.1 per cent tenants
• 16.2 per cent real estate agents
• 10.1 per cent landlords
• 10 per cent other
• 7.6 per cent tenant advocates.
Structure of the report
1.21 Chapter 2 discusses the prevalence and nature of tenant concerns, and the responses of landlords and agents to those concerns.
1.22 Chapter 3 explains why landlords and agents do not currently have a right to enter to take advertising images of tenants’ possessions. It also explains why landlords and agents should have a right to enter to take advertising images of tenants’ possessions, subject to the legitimate concerns of tenants.
1.23 Chapter 4 discusses how the RTA’s notice of entry requirements should be improved if landlords and agents are given a right to enter to take advertising images.
1.24 Chapter 5 explains why the common law right to quiet enjoyment does not assist tenants with concerns about advertising images.
1.25 Numerous stakeholders highlighted the importance of good communication when it comes to taking and using advertising images. This is discussed in Chapter 6.
1.26 Chapter 7 concludes the report.
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Preliminary consultations with the Tenants Union of Victoria (30 August 2013 and 29 January 2014).
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On 17 September 2014, the Office of the Victorian Privacy Commissioner (Privacy Victoria) became the Office of the Commissioner for Privacy and Data Protection (Privacy and Data Protection Victoria). In this report, it is referred to as Privacy and Data Protection Victoria, except when citing its submission, which was received on 18 August 2014.
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Tenants Union of Victoria, Key Housing and Tenancy Statistics (February 2014) 1 <http://www.tuv.org.au/wp-content/uploads/2014/04/Housing-and-tenancy-stats.pdf>.
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Residential Tenancies Act 1997 (Vic) s 85(a).
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Radaich v Smith (1959) 101 CLR 209, 222 (Windeyer J).
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Residential Tenancies Act 1997 (Vic) s 86.
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Ibid ss 86(1)(a)–(b).
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Ibid ss 85(b), 88.
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Ibid s 67.
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Martins Camera Corner Pty Ltd v Hotel Mayfair Ltd [1976] 2 NSWLR 15, 23.
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Ibid.
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Victorian Law Reform Commission, Photographing and Filming Tenants’ Possessions for Advertising Purposes, Consultation Paper No. 22 (2014).
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Victorian Law Reform Commission, Photographing and Filming Tenants’ Possessions for Advertising Purposes: Submissions (23 December 2014) <http://www.lawreform.vic.gov.au/projects/photographing-and-filming-tenants-possessions-advertising-purposes/submissions>.