Flash Cubes. Now there is a sacrifice from the alter of progress and rightly so I suppose. Now the flash for our high-res camera is built-in to the smartphone in our pocket, which also doubles as a flashlight to find the toonie you dropped between the driver seat and the console. In days gone by photography was inconvenient and expensive to develop the film but now, those barriers are removed and conservative estimates state that globally we take five billion pictures a day of everything from food to feet.
Because of this pocket technology, we have the desire to take pictures of everything, and in real estate, there may be some things off limits. Let’s think through some of those things.
Exclusive Seller Representation Agreement
In Alberta when a REALTOR® takes a listing they use the AREA Exclusive Seller Representation Agreement which clearly outlines what types of information the brokerage will collect, use, and maintain for the marketing of the property and support of listing databases like the MLS® system, and this information is named “Listing Information”.
This listing information consent obtained by the brokerage through the agreement permits the brokerage to take photos and videos for the express purpose of marketing the property and also prohibits any use that is not consented to. For example, if a brokerage has a listing that is so over-the-top gorgeous that they wanted to use the listing photos in a local magazine to advertise brokerage services, that use is not consented to in the Exclusive Seller Representation Agreement and would need separate consent of the seller.
One aspect of this process which is undoubtedly not considered generally is personal information as defined by Alberta Privacy legislation. At its most basic, personal information is defined as any information which can be used to identify an individual.
In the real estate context, that could be family photos, pictures of the kids on the fridge, or even a diploma on an office wall. By taking listing photos in the home, REALTORS® should make efforts to avoid capturing such personal information in the photos, however, the concept of deemed consent assumes that since the seller's brokerage was given consent to take the photos through the listing agreement, and the seller chose to leave family photos on the wall so that consent is deemed to be given. Shift now to a buyer’s representative or even a buyer inside that listing who decides to take photos or videos of the space and capture personal information, this collection of personal information would not be deemed consent but a violation of privacy legislation.
In taking photos or videos in another brokerage’s listing, a REALTOR® or their client does not have any consent implicitly to take such photos or videos unless they can be absolutely certain that no personal information that can identify the seller is captured. That is a high bar to meet with surety so the best advice is for Realtors® to refrain from taking videos or general photos inside a listing that they do not represent and advising their clients of the same.
Taking a picture of a couch the buyer likes or a certain style of handrail wouldn’t be an issue generally but care should be taken to avoid capturing anything identifiable. The best plan is to seek the seller's consent if special circumstances such as remote viewing, or recording a video for overseas buyers are required. This consent should be specific, timely, and narrow in the consented use of the video and of course, obtained in writing before the recording takes place.
Disclosure and Distribution
The listing agreement does discuss the collection and use of the information for the purpose of which it was collected, namely to market the property on the MLS® system. However, no other consent is provided to other industry members. If a REALTOR® takes a video inside a seller’s home doing a promotional ad for their services for example and then publishes it on a social media platform, there is an inherent risk that the Realtor® not only is potentially collecting and using personal information but also disclosing and distributing it without consent. There is a privacy legislation issue here, as well as a potential for civil action on behalf of the seller against the member and the brokerage. This should only be done with transparent, timely, and informed seller consent or not at all.
The reality of modern digital media is that once a photo or video is taken, it is almost simultaneously saved to a cloud service or device that really never deletes it. As a general rule digital information is created but rarely destroyed so the point of creation is the best time to think about your obligations and liabilities.
Be thoughtful about photos you take and ask yourself if any identifying information is being captured, and when in doubt seek written consent.
Provincial Practice Advisor
Bryan has many years of experience in the real estate industry including over 10 years as a former broker in the Edmonton Region.
Email: email@example.comPhone: 403-209-3619