January 6th - 2004

Average Rental Vacancy Rate Rises to 2.2 Per Cent

It's a new year and a new law is in effect. Starting January 1 all businesses must comply with the Personal Information Protection and Electronic Documents Act (PIPEDA) when collecting, using and disclosing an individual's personal information.

It's a new year and a new law is in effect. Starting January 1 all businesses must comply with the Personal Information Protection and Electronic Documents Act (PIPEDA) when collecting, using and disclosing an individual's personal information.

By now, real estate boards and firms have their privacy policies firmly in place as well as a designated "privacy ;officer". The privacy officer is responsible for implementing the firm's privacy policies, making sure the firm is privacy compliant, training staff on privacy issues and responding to questions on privacy matters and requests to access personal information.

Complying with this new privacy law has changed the way all businesses including REALTORS operate. There is no "cookie-cutter" solution to dealing with privacy compliance since personal information management situations vary so widely. Therefore, REALTORS have been working to understand the philosophy behind the Act so that compliance is "just something they do naturally."

More than 4600 REALTORS have attended OREA's seminar, Complying with Privacy, so far. If you haven't taken advantage of this resource yet, courses are still available by contacting your local board.

In the several months leading up to the privacy deadline, REALTORS have had many questions about privacy compliance and an FAQ document has been developing on the OREA web site. To view the FAQ document or to submit a question regarding privacy compliance, go to the "My OREA" section of www.orea.com then select the "Privacy Compliance" option on the "Legal" drop-down menu. Here are a few examples of questions from REALTORS which help demonstrate how PIPEDA affects a REALTOR's day-to-day activities:

Question: What about my old transaction files, from the last few years, which contain all of the information that I collected on each transaction that I completed?

Answer: If there is still a business or legal purpose for keeping the information contained in those files, you may continue to keep it. Make sure that it is adequately protected with safeguards appropriate to the sensitivity of the information. Also, that personal information cannot be used or disclosed for anything other than the original purpose, for which consent was obtained, without the need for further consent.

However, if there is personal information in those files that you have no further business or legal purpose for keeping (for example, the list of people who attended the open house), that personal information should be destroyed.

Question: I didn't specifically ask my client if I could keep their contact information so I could send them a market update or a birthday card. Yet, I have been doing that for the past three years, without any indication that he/she wants me to stop. Can I rely on the notion of implied consent and continue to send this person the same type of information, with a notice saying that if they don't want to receive this information to contact me?

Answer: Although it cannot be said with absolute certainty, given the lack of any guidance or interpretation on the issue of personal information collected prior to January 1, 2004, a strong argument can be made that you can continue to carry on with this practice, if the conduct in question also occurred prior to January 1, 2004. In other words, sending out these market updates or birthday cards is part of a pattern of activity for which consent may be implied by the conduct or the person concerned prior to January 1, 2004. However, it is important to include the notice saying that if the person no longer wishes to receive this information, please call/write/email, and he/she will be removed from the database and he/she will no longer receive mailings.

Question: I plan on using my client's existing personal information for a new purpose (i.e. a purpose was not part of the original consent when I first obtained the personal information and not something that I have been doing prior to January 1, 2004). What do I need to do?

Answer: Further consent must be obtained before that information is used or disclosed for the new purpose and a record of this additional consent should be documented. The client must be given the purpose for which this new consent is needed and the purpose must be reasonable.

Question: Can I market to someone whose listing shows up as "expired" on our board's MLS system?

Answer: No, you cannot use the information obtained from an expired listing on the board's MLS system to market to that person. The general rule is - you can't collect, use or disclose a person’s personal information without their consent. When that seller signed the listing agreement to submit the now-expired listing to MLS he/she consented to the use of their personal information by the listing broker, cooperating brokers and by the board for certain specified purposes (see section 11 of the OREA standard form listing agreement - Standard Form #200). Those specified purposes and that consent do not include having other members use that information in order to market their services to the seller. 

Question: What if I want to send follow-up and other promotional materials to the people who attended my seller's open house?

Answer: Somewhere on the sign in sheet where the people attending the open house are writing their names and perhaps addresses and/or phone numbers, should be noted all of the purposes for which that personal information will be used and to whom that information will be disclosed - for example: "to provide follow up material on this property and also general promotion material about the listing broker and the listing salesperson." There should be a place on the sheet where the people who are providing their names and addresses will be able to indicate that they don't want you to use their personal information for some or all of those purposes or they don't want you to disclose their personal information to some or all of the proposed recipients.

Abide by their wishes. Do not use that personal information for any purpose other than what was consented to. Do not disclose that personal information to anyone other than what was consented to.

As always, protect that personal information with safeguards appropriate to its sensitivity and destroy it when it is no longer needed for its identified purposes or for legal requirements.

Question: What if the seller wants to see the names (and addresses) of the people who attended their open house for security reasons?

Answer: Add that purpose (security reasons) and that recipient (the seller) to the sign in sheet as one of the purposes and one of the disclosures that will be made of their personal information. However, you should carefully discuss with the seller what should be done if someone does not consent to this disclosure for this purpose (this is a little different than just making sure you don't send marketing information to this person). If the seller would not want someone to be in their house without knowing their name and address that needs to be made clear to the person who has refused to give their consent to this. Consequences of not giving consent must be provided.

Be very careful in how you deal with this situation since you need to make sure that that is the only reason why the person is not being permitted to view the home and that the person clearly understands that that is the only reason he/she is being denied entry. Otherwise, there could be possible Code of Ethics concerns and/or Human Rights concerns.

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Verify mortgage details up front Average Rental Vacancy Rate Rises to 2.2 Per Cent

For more information contact

Ontario Real Estate Association

Jean-Adrien Delicano

Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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