Spying on buyers: It’s awful, but is it lawful?

Home security cameras have seen an explosion in the market worldwide. Surveillance equipment can monitor premises to deter criminals or provide evidence in a criminal investigation. The downside is that governments, corporations and individuals across the globe have been guilty of misusing surveillance and breaching individuals’ privacy.

So, what are the benefits of home surveillance in real estate, and should REALTORS® encourage its use to monitor buyers at open houses and showings?

It’s a question that has many layered answers because it depends on how the surveillance is used, where it’s used, and what it’s used for, because with the rise in surveillance there has been a rise in privacy concerns and laws to protect it.

Canada’s and BC’s privacy laws don’t extend to surveillance conducted by private citizens because the law distinguishes between information gathered and used for commercial versus non-commercial purposes.  But, while a homeowner selling a property is not a commercial situation by the strictest definition, does the hiring of a professional Realtor make it a commercial one? It would seem so.

In January this year, an Ontario Realtor told CBC news that two of her clients used cameras and microphones to eavesdrop on potential buyers. The sellers did not use the information to their advantage in negotiations, says the Realtor, but that it was “tempting” to do so.  The Real Estate Council of Ontario was prompted to warn buyers and brokers to be cautious during home viewings owing to the proliferation of hidden surveillance equipment.

“So, the question is whether people looking at the house have a reasonable expectation of privacy in somebody else’s house,” Canadian privacy lawyer Kirsten Thompson told the CBC. “A seller opening a home for a viewing is similar to an amusement park or shopping mall.” In other words, little privacy can be expected.

But clearly the area of privacy and confidentiality is a developing one and there are gaps and a lot of space for interpretation.  

A prominently displayed surveillance camera or signs alerting visitors to the property that a camera is capturing their image, would likely deter bad guys from taking a seller’s personal belongings or victimizing a Realtor. And that’s a good thing.

But apart from the security benefit, the idea of being followed around and monitored carries an ick factor that may make many legitimate buyers feel uncomfortable, and you only need one or two people to resent the camera’s eye to louse up a showing and a potential sale. That’s not good.

Besides, what can you or the seller learn from watching low quality video images after the showing is over? In the US, many jurisdictions permit people to listen to the audio of the surveillance footage, so the benefit there could be the unfiltered feedback about the house from prospective buyers that may be useful.

But Canadian federal law prohibits the use of ‘surreptitious’ audio listening and recording, which comes under the wiretap provisions of the Criminal Code. (The exception is when at least one of the persons in the recorded conversation has consented to being recorded; even if that person is the one doing the recording.)

As with many legal matters of this kind, consent removes much of the risk. So, as visitors enter a home and are informed beforehand, or at the property, that there are cameras inside, and proceed to enter the premises anyway, there shouldn’t be a problem from a legal standpoint.

Video footage can show the types of people coming through the home, and the places in the tour where they may linger, or point to flaws they find, and possibly prevent crime or provide evidence if a crime occurs.

But bear in mind that the data gathered for commercial purposes are subject to the provincial Personal Information Protection Act. So, the guideline for Realtors is to find out when a seller’s property has surveillance cameras, and get their permission to post a sign indicating this on the day of the showing, or before.