Saturday, January 07, 2006
Privacy Issues in Real Estate
Realtors in Canada cannot wiretap anybody …
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Canada has two federal privacy laws, the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA). The Privacy Act imposes obligations on some 150 federal government departments and agencies to respect privacy rights by limiting the collection, use and disclosure of personal information. Individuals are also protected by the PIPEDA that sets out ground rules for how private sector organizations may collect, use or disclose personal information in the course of commercial activities. Initially, PIPEDA applied only to personal information about customers or employees that was collected, used or disclosed in the course of commercial activities by the federally regulated private sector, organizations such as banks, airlines, and telecommunications companies. The Act now applies to personal information collected, used or disclosed by the retail sector, publishing companies, the service industry, manufacturers and other provincially regulated organizations. Real estate is, of course, one sector of the service industry.
Of all the Provinces in Canada, British Columbia is possibly the strictest when it comes to enforcing consumers’ privacy rights. The Personal Information Protection Act of British Columbia came into force and effect on January 1, 2004 and applies to all consumers and service industries in the Province, including real estate, banking and mortgaging. Specifically as it relates to real estate, the Act protects all personal information that is collected, used or disclosed, including information regarding a person’s race, age, marital status, religion, employment history, home address and telephone number(s) including cellular telephone number, finances including the purchase or sale of real property, credit history, banking qualifications and political opinions.
The provincial legislation imposes significant obligations on real estate brokerage firms and individual professionals, pretty much in line with the fiduciary duties and obligation contemplated in agency relationships. Below is a synopsis of the most important obligations:
[ ] Designation of a ‘Privacy Compliance Person’ – Since companies are simply legal entities and cannot enforce compliance with the Act, each brokerage firm must designate an individual who is personally accountable for the firm’s compliance with privacy regulation. This individual needs not be a real estate licensee. A non-practising, non-licensed owner or shareholder, for instance, can serve as a Privacy Compliance Person. This individual must be proficient with all facets of the Act and is in charge of educating staff and manage inquiries and complaints.
[ ] Identification of Purposes – Whether in the process of introducing a Listing Contract or drafting an Offer To Purchase, the real estate professional has an obligation to clearly identify and explain to each individual why and how there is a need to collect and use that individual’s personal information. Furthermore, the real estate professional has an obligation to explain why, how and to whom he may wish to disclose such information.
[ ] Limitation of Collection, Use and Disclosure – The real estate professional must not collect, use and disclose more information than what is reasonably necessary under the circumstances. Moreover, there is an obligation imposed on the Realtor not to collect, use and disclose personal information for any purpose unless the individual has consented to that purpose.
[ ] Destroy Information – Personal information must be destroyed once it is no longer needed for the purpose for which it was collected. One notable exception is Contracts of Purchase and Sale, which must be stored for two years but only for review purposes by pertinent real estate licensing authorities.
[ ] Provide Access – Individuals are guaranteed access to their own personal information for purposes of review and amendment thereof.
[ ] Provide Recourse – Procedures must be implemented to receive and respond to complaints and inquiries.
When it comes to enforcement, the Legislation establishes a procedure that empowers the British Columbia Information and Privacy Commissioner to investigate – including auditing – an organization. The Commissioner has the power to issue orders which are binding on firms. Failure to comply with the Legislation can result in penalties up to CAD $100,000 as well as civil damages and criminal charges.
Privacy is an issue taken very, very seriously in British Columbia.
Luigi Frascati
Real Estate Chronicle
