This article was written by Natalka Falcomer, VP Corporate Development.
You get a call from a landlord. They ask you to lease up their space quickly – the tenant is moving out in two months. No problem. Off you go to the property, keys in hand and you start taking pictures. After all, pictures are critical to market the property and it’s industry standard to take them. Nothing unusual here, right?
According to a recent decision, Juhasz v. Hymas, 2016 ONSC 1650, you now just started a lawsuit and cost your landlord thousands in legal fees and lost rent. Not to mention the fact that you’ve jeopardized your reputation and your commission cheque.
If you want to remain the good books with both your client and the courtroom, read on.
Why taking pictures can cause a lawsuit
The Ontario Divisional Court recently made a ruling that prohibits landlords – and their real estate agents – from entering into a tenant’s unit to take pictures for marketing purposes. The only exceptions are:
(a) if you have consent (for your and your landlord’s health, please get in writing) from the tenant who’s occupying the unit; or
(b) there is a provision in the lease that clearly states that the landlord or the landlord’s agent is permitted to take photographs of the unit for publication purposes.
There are some exceptions, of course. For example, in the residential context, the landlord can enter into a tenant’s premises without consent in order to show the unit. Other examples of permitted entry without consent are:
(a) there is an agreement that the tenancy will be terminated;
(b) notice of termination has been given; and
(c) the landlord has made a reasonable effort to notify the tenant of the landlord’s intent to enter.
Section 27(2) of the Residential Tenancies Act also allows a landlord, or a qualified real estate salesperson authorized by the landlord, to enter a rental unit to view the premises upon giving 24 hours prior notice to the tenant before the time of entry.
The decision, in essence, only means that you cannot take picture of a unit and then publicize it for marketing purposes without this right being clearly stipulated in the lease or agreed to by the Tenant. And for all of those commercial agents wondering – yes, this can also apply to the commercial context.
What should you do to protect your client?
Agents can protect their clients both before and after a lease is signed. Here’s how:
During the Offer to Lease Stage
Agents negotiating both residential and commercial offers to lease can use this opportunity to truly impress their clients by ensuring that the offer specifically allows the landlord or its representative to take photographs, videos or digital recordings of the premises and that the tenant consents to the use of the images for marketing of the premises on any communication networks.
If you’re representing the tenant, ask them if they have any privacy concerns. For example, business owners may have confidential documents, drawings or information on whiteboards that contain sensitive material. Whether or not the tenant has privacy concerns, it may be prudent to include a clause in the offer that limits the landlord’s ability take photographs, videos or digital recordings and that the publication of these materials are subject to tenant approval.
After the Lease is Executed
In order to avoid a lawsuit, do not enter the premises to take pictures before doing the following:
- Ask the landlord if he or she has a provision in its lease to take pictures of the premises for marketing purposes.
- If the landlord says the right exists and that’s in the lease, ask to see the clause. There may be certain conditions such as getting the tenant’s consent, having the tenant present when you take the pictures and restrictions around when you can enter.
- If no such clause exists, ask the landlord to obtain written consent from the tenant. If your client-landlord refuses to get the consent, remind them of the Juhasz v. Hymas, 2016 ONSC 1650 case and the $3,000.00 the landlord had to pay to the tenant, the thousands he lost in rent and the legal fees. It’s better to act prudently than to risk litigation.
The moral of the story: get it in writing – either during the negotiations or before you walk into a tenanted premises. Privacy issues are a real issue and can cause a lawsuit.