What House is it? How case-by-case policy advocacy upholds all tenants' privacy
If renting is to be a legitimate, appropriate and long term housing option for those who choose it, then our laws and culture should reflect this. James Bennett, Policy & Liaison Worker at the Tenants Union of Victoria, unpacks what this means in practice, and shows how rights-based advocacy for individual tenants is able to achieve policy change through impacting on legal determinations.
More people are renting, they are renting for longer and more families are tenants than ever before - http://www.theage.com.au/victoria/renting-now-the-norm-for-a-generation-of-families-report-20140819-105xeb.html.
So how do we ensure that society accepts renting as a legitimate long term housing option? And how do we ensure our laws protect tenants? The Tenants Union of Victoria (TUV) provides advice and advocacy for individual tenants; however another important aspect of our work is to raise the profile of tenancy issues in public debate and to lobby for improved laws for renters.
An interesting ‘dimension’ of the debate regarding renting is “who controls the space inside a rented house?”. Two recent examples illustrate how TUV has been involved in advancing tenants’ rights around this question; namely – ‘open for inspections’ and photographing tenant possession.
The fundamental purpose of a tenancy agreement is to grant a tenant exclusive possession and quiet enjoyment of the rented premises. When a landlord signs a lease they agree to these conditions and they are compensated by the payment of rent at a level which they set. Exclusive possession means that a tenant can deny access to others. This is a common sense and necessary condition for anybody to establish ‘a place called home’. This may seem like a clichéd observation; however it is often lost (or forgotten) in the narrative regarding the rights of landlords, particularly when it comes to who can have access to a rented property.
Recently the TUV assisted a tenant who objected to their real estate agent conducting an ‘open for inspection’ against their will. The dispute went to the Victorian Civil and Administrative Tribunal (VCAT) who ordered that the real estate agent could not proceed without the tenant’s consent - http://www.theage.com.au/victoria/real-estate-agent-blocked-from-offering-mass-viewing-of-rented-property-20140803-zzzay.html
The TUV welcomed this decision as we have long believed that forcing tenants to endure ‘open for inspections’ is not consistent with the relevant provisions of the Victorian Residential Tenancies Act (RTA). The law does not specifically address the issue and unfortunately there has been an assumption that agents had a right to conduct ‘open for inspections’ regardless of the tenants wishes. VCAT has now confirmed that there is not an automatic right to conduct ‘open for inspections’. Tenants are entitled to ‘quiet enjoyment’ and exclusive possession of their rental property. Having dozens of strangers looking through a tenant’s home can be a massive infringement of privacy, security and quiet enjoyment. VCAT has clarified that only genuine prospective buyers can be shown a property by appointment – not just anyone who is wandering past and wants to stickybeak, check for valuables or assess the security system.
This decision will not prevent houses from being marketed, inspected and sold – it simply upholds and clarifies the tenant’s right to quiet enjoyment, privacy and security during the process.
It is worth noting that in Queensland and Tasmania the law specifically states that ‘open for inspections’ cannot be held without the tenants consent - http://www.rta.qld.gov.au/Renting/Moving-out/Open-houses-and-viewings http://tutas.org.au/factsheet/access-privacy/ These provisions have been in operation for over 5 years and the world has not ended. Technically the VCAT decision is not a binding legal precedent in Victoria but it is an encouraging signal for other tenants who do not consent to ‘open for inspections’.
The other issue is whether landlords or agents have a right to photograph a tenant's possessions whena property is being advertised for sale or reletting. The RTA does not specifically address this issue and, following discussions with the TUV, the Victorian Law Reform Commission (VLRC) began an inquiry into the relevant provisions of the law ( http://www.lawreform.vic.gov.au/projects/photographing-tenants-possessions-advertising-purposes/PTP-consultation ) (http://www.theage.com.au/victoria/tenants-privacy-concerns-prompt-review-into-photographing-sale-properties-20140806-100zun.html )
In some cases tenants’ possessions are photographed without their knowledge or consent and in some instances they may never realise this has occurred. Including the tenant’s possessions in photographs makes the property more attractive to potential buyers by having a “lived in” appearance. In this regard tenant’s possessions are being used for free for marketing purposes with no clear legislative protection. The TUV believes that with modern technologies affordable and accessible, the real estate industry should be able to adapt as has been done in other states that require consent before photographs can be taken. The landlord should consider obtaining photos or a virtual tour to use in a future sale or reletting when preparing to rent a property. The TUV notes that legislative provisions already adopted in Queensland (http://www.rta.qld.gov.au/Renting/Moving-out/Open-houses-and-viewings ) and soon to commence in Tasmania (http://tutas.org.au/2013/12/summarising-the-tenancy-amendments/ ) specifically refer to a right to privacy and accordingly require a tenant’s consent to take photographs during a tenancy agreement. These provisions provide a simple and appropriate legislative framework that could be adopted in Victoria.
A requirement for written consent from the tenant makes it very clear when photographs containing tenants’ possessions can be used and would provide ample clarity to all parties involved. It has not prevented houses from being marketed and sold in Queensland and there is no reason to expect it will have any adverse effect on real estate sales in Tasmania. Similar provisions can, and should, be introduced in Victoria. The TUV has argued this in a submission to the VLRC and during roundtable discussions regarding the issue.
The notion that somebody’s personal space can be photographed against their will and even without their knowledge is unacceptable and should not be implied or facilitated by ambiguities in the law. The VLRC report is due in early 2015 and the TUV hopes it will lead to greater clarity, privacy and protections for tenants.
The TUV will continue to advocate that renting should be a legitimate, appropriate and long term housing option for those who choose it – our laws and culture should reflect this.
James Bennett is the Policy & Liaison Worker at the Tenants Union of Victoria. He spends his days at TUV writing submissions, talking to journalists and liaising with stakeholders. James has almost two decades of experience working in public policy, politics and research.
Posted by Kathy Landvogt