We had a rather lively discussion on a private Facebook group this week regarding the number of active monitoring devices Realtors are seeing in homes when we are showing homes these days. It used to be that we would see the occasional baby monitor in odd locations in a home. Then, we saw laptop computers left open or desktop computers with their "camera on" lights covered up (but not the cameras).
Now, it seems that monitoring devices are probably more common than not. They come in all forms: security systems, smoke detectors, light switches, audio and television systems. These are all great appliances to monitor your home and for convenience. However, when you have your home on the market and you have thereby asked that a Realtor and their clients visit your home wit you not present, it is actually quite illegal for you to be monitoring their discussions!
In one example, one Realtor had stated that after a weekend of showings, the seller and Realtor had agreed to have a price reduction on a listing if they failed to generate an Offer to Purchase. When the agent called the seller to let her know the amendment for price reduction was being prepared for her signature, she said "Oh no. We have an offer coming in for X amount, possession date is X date, down payment is X amount, condition date is X date." The agent replied with, "Good to know we will have a done deal in a couple hours!" It's pretty clear there had been some kind of monitoring happening.
Sure, on the Facebook group we had a discussion about a person's rights to safeguard their home. That is so true. Unfortunately, this goes well beyond that. It comes down to whether or not you can record or monitor a conversation without consent.
As we know, Alberta is one of the only provinces that has its own privacy legislation, so that's why we need to turn to see if there is an issue. In recent years, several Alberta law firms have weighed in on this issue on their websites. [see notes 1,2] It turns out that a Realtor and their clients do, in fact, have a reasonable expectation of privacy while viewing your home.
But why can't you record or monitor discussions within your own home? Well, the answer to the question whether or not you can secretly record a conversation you are having with another person: yes, you can. Furthermore, it is not illegal; HOWEVER, section 184 of the Criminal Code makes it illegal to willfully intercept or record a private communication. That is: one of the parties in the conversation must be aware of the conversation being recorded or listened to in order to make it legal.
So, if you have these monitoring devices in your home and you are going to be actively recording or otherwise eavesdropping on the private conversations of people within your home, then place a warning near the front entrance to the home that specifically states that audio/video may be monitored or recorded.
We were advised by legal counsel a few years ago that if our seller clients had active listening or recording devices in their homes during showings, that they were required to prominently post such as a warning to consumers. In taking buyers through a private residence, we (and they) have a reasonable expectation of privacy.
If you are a potential homebuyer, the caution is to assume that conversations in the private residence of someone else is being monitored in some way. Do not have a discussion in the home about its merits or how well it would fit your lifestyle. These simple items could irreparably harm our ability to negotiate on your behalf should you wish to make that Offer to Purchase. And, always say thank you on your way out of the home to the doorbell camera!
1. "Implications Of Recording Private Conversations In Canada," retrieved 2021-01-30. https://prowsechowne.com/implications-recording-private-conversations-canada/
2. "Can You Secretly Record Conversations With Others With Your Smart Phone?" retrieved 2021-01-30. https://helpandhope.ca/car-accident-lawyer-edmonton/can-you-secretly-record-conversations-with-others-with-your-smart-phone/