It has become relatively commonplace for Homeowners to install various devices which will record the activities within their own home, both videos and audios.
Naturally, the homeowner is free to do whatever they want in their own house. They can install devices which permit them to check on their infant children in another room. That’s fine. That’s their own business.
However, when they list and offer their house for sale, that’s another matter.
Here’s a provision in the Criminal Code:
“Interception
184 (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) an offence punishable on summary conviction.
Saving provision
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;”
This means that videos would be fine, but audios would not. You would need permission for the interception.
If you are part of the conversation, then, you have permission to record it, even without the knowledge of the other party.
Otherwise, you require “consent” which may be express or implied.
Listing agent
The Listing agent has a duty and obligation to protect their client, the Seller. So, they will have to ensure that there are no such audio recording devices. If there are, and they cannot be disabled, then, consent from attendees at the property will be required.
Listing
Somewhere on the Listing “notice” of such recording devices should be given. This could easily be handled in Broker’s Remarks.
Buyer’s Agents
The possibility of an audio recording should always be mentioned to your clients. While the house may be vacant, nevertheless, audio recordings may be taking place. It’s common enough and many Sellers may not be aware or even utilize their interceptive devices including “Ring doorbells” and “Alexa”.
The key information that a Buyer wants to ensure will not be overheard is enthusiasm for the purchase, and an indication that they will pay more money for the property.
Expectation of Privacy
Many believe that there must be an expectation of privacy for the matter to be an issue in someone’s private home.
Expecting privacy or not expecting privacy doesn’t really matter. The Criminal Code kicks in, if the conversation between two people is intercepted without their consent. The key word here is “interception”.
Notices and Warnings
As long as the Seller gives the Buyer the heads up, that cameras and tapes are rolling, then, that should be sufficient. The Buyer accepted the risk and/or just didn’t care one way or the other. There was a sign! There was a statement on the MLS etc. As long as that “notice” was good enough, then it should meet the minimum standard test, and that should mean Buyer’s consent. Independently, the Buyer has no innate right to enter into anyone’s home and view their property.
So, for the real estate agents involved:
Listing agent: give notice
Buyer’s agent: give warnings (even without any notice)
Brian Madigan LL.B., Broker