Why Do Tenanted Properties Usually Have No MLS Photos?

TorontoRealtyBlog

Well, if we're going to talk about tenanted properties, there are a lot of other topics of conversation that could result.

Didn't I get criticized once for saying, "All tenants are messy?"  I didn't mean all.  Just 99% of them, geez!

If you're a landlord, you'll want to read the following court case regarding a landlord's access to their property, notably when a landlord can access the property, and, you guessed it – when they can take photos…

I know, I know.

You take one look at the above photo, and if you're like me, you think, "Mmmmmmmmm……Cheerios!"

I haven't had cereal in a long time.

I can't eat just one bowl.  I end up eating 2/3 of the box, and it's usually at 11:30pm on a weeknight, then BAM!  You wonder why you gain five pounds a year.

Was I the only one raised on the "boring" cereals – Cheerios, Rice Krispies, & Corn Flakes?  Would it have killed my parents to let me eat something with a goddam marshmallow in it, or a cartoon ghost on the front of the box?

ANYWAYS…

You might think the above photo is something you only come across when you google "messy apartment," but in fact, it's how most tenanted properties look.

Yes, I said that.

I wrote on my blog a couple years ago, some extreme, gross generalization along the lines of "all tenants are messy," and a couple of people really took offense to it!

As I said at the onset, not all tenants are messy.  But it would SHOCK you to see what the "average" tenanted property in a downtown Toronto condo looks like.

I know, I know – you are a clean person, and when you rented, you were respectful of the property, but also of yourself, and how you lived.

Or if you're reading this right now, and you are a tenant, and you are clean, then that's great!

But I'm telling you from my experience, having entered at least 4-5 tenanted properties per week, every week, every year, for over a decade, in Toronto – tenants, by an overwhelming majority, live like slobs.

So for you landlords out there, listen up: you're going to do your best to be smart, diligent, and chose worthy tenants, but you never know if that person with the six-figure salary and 850 credit score is going to hoard in your investment property.

You also don't know if your tenants will ever clean inside the unit.

So what do you do when it comes time to sell?

We've been over this before.  I wrote a blog in 2014 entitled, "Soooo….You Want To Sell Your Tenanted Property?"

But as for the very first step – before real estate showings even take place, how do you go about getting decent photos?

Real estate agents and buyers alike will complain either that:
a) The photos of the tenanted property don't show well
b) There are no photos of the tenanted property

Damned if you do, damned if you don't.

But would it surprise you to know that you, the landlord, the owner of the property, are not allowed to take photos without the tenant's expressed consent?

Here's an article from last month's R.E.M. (that's "Real Estate Magazine," by the way – not the awesome band from the 1990′s.) which clearly reaffirms a landlord's rights when entering the property, and a tenant's rights with respect to how their property is photographed.

 

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"No Photos! Court Rules Against Landlord's Access To Photograph Property"
REM Online
By: Matt Mauer

A panel of three Ontario Divisional Court Judges have held that residential landlords are not permitted to photograph a property while it is occupied by a tenant unless the lease explicitly permits such photographs to be taken, or the landlord obtains the express consent of the tenant.

The Ontario Landlord and Tenant Board ordered a tenant to be evicted when she refused to allow the landlord access to the property for the purpose of photographing it so that it could be listed for sale. The tenant refused on the basis that her privacy would be invaded if photographs of her and her children's personal possessions would be disseminated to the public via the Internet to advance the sale of the property.

The Landlord and Tenant Board held, erroneously, that the lease in question provided the landlord with entry "in any circumstances" and that the landlord was therefore permitted to enter and take pictures. On appeal, the Divisional Court judges noted that the lease did not contain any such provision.

The Divisional Court reviewed the relevant sections of the Residential Tenancies Act, 2006 that pertain to a landlord's right to enter the rental premises and found that none of the statutory provisions permitted entry for the purpose of taking photographs to market the property for sale or lease.

Sections 26 and 27 of the Residential Tenancies Act, 2006 provide that a landlord may enter a rental unit for, among other reasons:

1. in cases of emergency;
2. to clean the unit if the lease requires the landlord to do so;
3. to show the unit to prospective tenants (if notice has been given to end the tenancy);
4. to carry out a repair, replacement or to do work;
5. to allow a potential mortgagee or insurer to view the property; and
6. to carry out an inspection of the unit.

A landlord is also permitted to enter a property if they have the consent of the tenant or "for any other reasonable reason for entry specified in the tenancy agreement."

The Divisional Court noted that the lease in question allowed the landlord to enter on notice "for showing the premises to prospective tenants or purchasers," but also pointed out that "there is no clause permitted entry by an agent to take photographs in furtherance of a sale."

The Divisional Court held that the landlord had no right to enter to take photographs without the tenant's consent (although they could take measurements) and overturned the eviction order that was made on the basis of the tenant's refusal to allow entry.

Interestingly, the Divisional Court distinguished the current case from a past case where a landlord took photographs of a property in connection with a damage inspection. In that case, the photographs were permitted due to the fact that they were taken in connection with an inspection, which is expressly allowed by the legislation and presumably also due to the fact that the photographs would not impact the tenant's privacy rights given that they would not be published on the Internet.

This recent decision is another reminder of how a little forethought when drafting a lease can avoid complications down the road.

 

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So to all you landlords out there: the next time you're signing a lease, make sure you include a clause, not just about access to the unit for showing to prospective tenants (this should be standard), but also about photographing the property.

You can't force the tenants to clean, but awful photos are better than no photos.

And if and when the unit is vacant, take photos.

Keep those photos on file, and use those photos the next time you have a messy tenant.  You can simply add "Please Note: Property Is Tenanted, Photos Are Of Vacant Unit" in the MLS listing, not that you need to, but just so there are no surprises.

Being a landlord is not as easy as you would think.  There's a steep learning curve, and it's little nuances like photos and when you can and can't take them, that can throw you for a loop.

Now, since I just spent the last twenty minutes reading about "R.E.M." on Wikipedia, and I got some insane flashbacks to my childhood after seeing the album cover for "Out Of Time," I wouldn't mind taking a quick poll as to the best R.E.M. song of all time:

1) Losing My Religion
2) Shiny Happy People
3) Stand
4) Man On The Moon
5) It's The End Of The World As We Know It

Now I'm listening to R.E.M. on iTunes.  I need to go to bed…

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