March 5th - 2006

Expired listings off limits

Can a REALTOR contact a seller whose listing has expired if the only information taken from the MLS® system is the fact that the listing has expired and the actual contact information is obtained from the phone book?

Can a REALTOR contact a seller whose listing has expired if the only information taken from the MLS® system is the fact that the listing has expired and the actual contact information is obtained from the phone book?

This often asked question was recently dealt with by the Privacy Commissioner of Canada. In a letter to the Canadian Real Estate Association (CREA), the Privacy Commissioner advised of a pending decision in which she found that a broker violated federal privacy law (PIPEDA) when it used the personal information of another broker’s client contained in an expired MLS listing to market services to that seller.

In 2004, the Privacy Commissioner received a complaint alleging a broker improperly used the personal information from an expired MLS listing when it contacted the seller to market its services to her.

The complained about broker contended it had not used the expired MLS listing information to contact the seller, but had only noticed the expired listing, or somehow knew the individual wanted to sell, and then obtained the seller’s name and phone number from the telephone directory to contact her. The broker argued that because the telephone directory is publicly available information, a PIPEDA exemption to consent should apply to the case. The Privacy Commissioner found such scenario “improbable”.

The Privacy Commissioner determined that the seller had authorized the listing broker and the real estate board to use and disclose all information she provided for the purpose of listing, marketing and selling the property, including placing the listing on the board’s MLS system. However, the seller did not consent to her personal information being used by other brokers to market their services to her.

The Privacy Commissioner further determined that whether or not the seller’s actual contact information was obtained from the MLS system or from a public telephone directory, there was a link between the seller’s intent to sell (which the broker knew from the expired listing on the MLS) and the contact information. The complained about broker violated PIPEDA when it used the seller’s personal information from the MLS system without her consent.

In her letter to CREA, the Privacy Commissioner recommended that specific opt-in consent clauses be inserted into all listing agreements, to clearly spell out the consent for the use of personal information once the listing has expired. This opt-in consent clause would give sellers the option of consenting to being marketed to by other REALTORS after their listing expires. In response to the recommendation, CREA issued Dispatch 2006-01, which can be found at: REALTOR Link.

Client must consent
A salesperson cannot use expired listing information from a board’s MLS system to contact those sellers and market their services without the informed consent of the seller. An opt-in consent clause will be inserted into the OREA standard form Listing Agreement (Form 200). Even with the consent clause built into the listing agreement, it will be up to each seller to decide whether or not they wish to be marketed to by other REALTORS after the expiry of their listing.

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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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The trademarks REALTOR®, REALTORS®, and the REALTOR® logo are controlled by The Canadian Real Estate Association (CREA) and identify real estate professionals who are members of CREA. The trademarks MLS®, Multiple Listing Service® and the associated logos are owned by The Canadian Real Estate Association (CREA) and identify the quality of services provided by real estate professionals who are members of CREA. Used under license.

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