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Are you being watched? Do you know who may be listening?

In visiting a number of homes, recently, we have noticed video and/or audio capture devices that were actively monitoring the premises. What this means to us is there is an increase in the number of home sellers that are actively recording their real estate agents, prospective buyers and their buyer agents during the course of open houses or private showing appointments.

This is something we were concerned with several years ago with baby monitors being positioned in homes and turned on so that home sellers could "eavesdrop" on the buyer's viewing appointment from nearby outside the home. That was something we always warned our clients about when we were showing homes to them and reminded them again when we noticed monitoring equipment (whether or not we could determine if the device was "on".)

Times have now changed: it is starting to appear quite often. In a few cases the common indicator light showing the device is acively monitoring had been covered up or possibly even disconnected. So, is this fair that the seller is able to monitor the buyers conversations? Or, is it even legal?

While I'm not a lawyer nor can provide legal advice, I do know that the Canadian Charter of Rights and Freedom provides all Canadians with the expectation of privacy. Invasion of Privacy is dealt with in Part VI of the Criminal Code of Canada.

And, I know that homeowners should be able to actively monitor their own homes for security purposes. However, when a home is listed for sale and the homeowner invites viewings by others, does this "right" to surveil and/or record continue?

Obviously, there is Privacy Legislation at the federal and provincial levels to consider. The use of audio and video recording devices within the confines of an individual’s private property has not yet specifically been addressed by Canadian privacy law.

Until it is judicially considered, my initial thoughts are that (i) it may be quite likely illegal under the Criminal Code of Canada, (ii) even if it is not illegal it may be very unwise to do it, as this may expose the seller AND their real estate agent to liability.

So, if a home seller is going to insist on having their surveillance cameras (or other devices) turned on during showings or open houses, then a warning sign MUST be posted in a prominent location where ALL prospective buyers and their real estate agents would be able to see it as soon as they enter the home (even better, on the front door). In addition the seller's real estate agent should secure a written consent from the seller to disclose the existence of the devices in the premises to all prospective buyer's agents. This is something that should then be included in the private REALTOR-to-REALTOR comments within the local MLS System database.

Are you being watched? It could well be but, as Canadians, you do have an expectation of privacy and the courts may well side with you should you challenge a homeowner that has their devices turned on. A word of caution is to keep your comments about a home or the owner's personal décor, or your deep desire to purchase the home to yourself and only share them with your real estate agent away from the home. You never know who may be listening!


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