RTA in Focus: Publication of Photos and Videos

RTA in Focus: Publication of Photos and Videos

17 March 2020

This article is part of the RTA in Focus series. With a raft of reforms to the residential tenancies framework set to start on 23 March 2020, we’re giving you the information you need to ensure you understand your obligations.

You can access all the articles in the RTA in Focus series here.

Photos and videos of the interior of a rental premises showing the tenant’s possessions cannot be published for marketing purposes without the tenant’s consent.

As the saying goes, “a picture is worth a thousand words” – and never more so than with real estate.

There’s no doubt that up-to-date photos or a video highlighting a property’s features can be the difference between a successful marketing campaign or one that falls flat. But what if there are tenants in the property when it comes up for sale or re-lease?

“We’ve all been in the situation where a tenant refuses to allow photos to be taken because they don’t want their possessions to appear online when the property listing goes live,” Kellie Eagles, Property Management Director at Elders Queanbeyan/Jerrabomberra and Deputy Chair of the REINSW Property Management Chapter Committee, said.

“It’s understandable in many ways, but it can make our job difficult when it comes to ensuring the property is marketed in the best possible way and in a timely manner.”

Amendments to the Residential Tenancies Act 2010 (NSW) starting on 23 March 2020 provide property managers with further clarity about when they can access the premises to take photos or film videos, and under what circumstances they can publish these to market the property for sale or lease.

What’s changing on 23 March 2020?

Section 55 of the Residential Tenancies Act outlines the circumstances in which a landlord, property manager or other authorised person is permitted to enter the rental premises without the consent of the tenant; for example, in an emergency, to carry out urgent repairs or where there are concerns for the health and safety of the tenant.

The new section 55(2)(d1) will extend this right of access, without consent, to a landlord, property manager or other authorised person so they can take photos or film videos of the interior of the premises to advertise it for sale or lease.

This right of access may only be exercised if the tenant has been given reasonable notice and a reasonable opportunity to move any of their possessions, so they don’t appear in the photos or video. Further, this right of access can only be exercised once within the 28 days preceding the commencement of marketing of the premises for sale or lease, or the termination of the agreement.

In addition, a new section 55A will be inserted into the Residential Tenancies Act. The section prohibits the publishing of any photos or videos made of the interior of the premises in which any of the tenant’s possessions are visible without first obtaining the written consent of the tenant.

The tenant can’t unreasonably withhold this consent (see new section 55A(2)). However, it’s not unreasonable for them to withhold consent if they’re in circumstances of domestic violence (see new section 55A(3)).

The new section 55A(4) clarifies when a photo or video is “published”. Importantly, they are not published if they are shared solely between the landlord and the property manager for purposes relating to carrying out inspections, maintenance or repairs (see new section 55A(5)).

The amendments in practice

Kellie explained that property managers often experience resistance from tenants regarding photos and videos.

“They don’t want their personal possessions appearing in online advertising or as part of any marketing material,” she said. “The new section 55(2)(d1) provides the tenant with the peace of mind of knowing they have a reasonable opportunity to move any of their possessions out of frame prior to the photography or video recording occurring.

“Where you’ve provided reasonable notice and the tenant has chosen not to move certain possessions, the photography or video recording can still go ahead.”

Kellie noted the requirement in the new section 55A to obtain the tenant’s written consent before publishing any photos or videos of the interior of the premises where the tenant’s possessions are visible.

“The tenant can’t unreasonably refuse consent,” she said. “However, if you think the tenant’s refusal is unreasonable, ask them to provide their reasons in writing. This way, you’ll have evidence on hand should any dispute arise in the future.”

Kellie noted that property managers need to be keenly aware that the requirements of the new section 55A do not apply to tenants who do not consent because they are victims of domestic violence.

“If a tenant is in circumstances of domestic violence, it’s not unreasonable for them to withhold consent for publication,” she said.

To avoid any issues relating to consent, Kellie recommended that any photos or videos of the interior of the premises be taken when the property is vacant.

“This avoids any potential issues that may arise regarding consent, particularly where a tenant is in circumstances of domestic violence, and there will be no barriers to publishing the photos or videos for marketing campaigns,” she said.

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