How is information use handled in a seller representation agreement?

Listing property in Alberta is a data-heavy activity. To adequately represent and market the property, the brokerage and REALTOR® need a lot of information, much of which comes from the seller. For this reason, the seller representation agreement covers a lot of ground in clarifying the collected information and the information the brokerage needs to use and distribute to accomplish the result the seller is seeking: the sale of the home. Let’s pick it apart a little bit so we are all clear on the information obligations in the agreement.

Personal Information

Personal information is defined loosely by the legislation as information that could identify an individual. Yes, I know it is broad and purposely so because the legislature wanted to ensure clarity in the specific use case where the information is needed, otherwise the broad application applies by default. In the AREA Exclusive Seller Representation Agreement, the information collected is clarified by the term “Listing Information” and includes all information required for the listing of the property, including personal and confidential information of the seller. According to the agreement, Listing Information is the seller’s name, the property address, images, videos, pricing information, existence of offers and even the final selling price and sale date once all conditions are removed.

Use, maintenance, disclosure and more.

When the seller agrees to representation by the brokerage, the seller needs to understand that seeking individual consent for every use of the information is not only impractical but would become exceedingly annoying for the seller and the brokerage. For this reason, the seller agrees that the defined Listing Information can be collected, maintained, used, and disclosed for purposes specific to the listing and marketing of the property. Because the brokerage is required to follow the Personal Information Protection Act (PIPA), the brokerage already has obligations under the legislation to get consent, collect only what is necessary, maintain only what is required for as long as it is reasonably necessary, and have a plan for the safe destruction of the information. Additionally, the brokerage must have a privacy policy that their REALTORS® must follow in handling this information.

Data Distribution

Regardless of the brokerage, it is safe to say that part of the marketing plan the brokerage employs will include using Listing Information in a system that makes the distribution easier to cast the most extensive possible net for a buyer. This would consist of things like mail marketing services, email marketing of the property, CRM systems, and so many other marketing services that different brokerages and REALTORS® use. These services will take some basic data of the Listing Information into a database system to manage the data for the purpose the brokerage and Realtor® need to market the property. Still, the brokerage may or may not control the database directly. The agreement itself considers these circumstances and provides the consent from the seller to use the information in this way as well as for things like market evaluations.

MLS® System considerations

The ultimate powerhouse of property marketing in Canada is the cooperative MLS® selling system, which I have written about in other articles. This system requires by its very nature the sharing of Listing Information with the MLS® System and all the cooperative partners connected to its vast infrastructure, such as other brokerages, appraisers, municipal governments, and 3rd party websites or service providers. The use of the Listing information in this way obviously benefits the seller in the marketing of the property itself but also has the added effect of benefitting the industry as a whole in the aggregation of statistics and market data to help better list, market, and sell, real estate for the benefit of buyers and sellers. This use of the Listing Information in this way is also explicitly covered in the agreement as well.

Final Thoughts

The overarching principle of privacy law is that once you have personal and confidential information, you have care and custody to handle that information in line with the legislation. As mentioned, that includes consent for use, disclosure, distribution, maintenance, retention and destruction, all with a bend towards handling as little information as necessary and destroying it securely as soon as it is no longer required under another statute. For most brokerages, this is likely ten years, but the key to having custody of personal information is that apart from the specific consent obtained, the information cannot be used for any other purpose unless additional informed consent is obtained. Additionally, the information a brokerage keeps or learns about a client can never be disclosed to another future client or used against the party who provided it in the future except by order of a court. It may be helpful to think of it as being a caretaker of the information rather than an owner of the information. Even though you know things, they are not your things, and you cannot use them without consent.

Data and information have become more valuable in today’s digital world than almost anything else. Consider that the next time you agree to terms of use for a “free” software service such as email providers, social media, artificial intelligence, or word processor programs. Nothing is free; they will give you free access as long as you give them free information that they can use on their own. It should be comforting to clients to know that when they work with a REALTOR®, the specific uses of their information are outlined in plain language.