We’ve all heard this recording, and probably most of us tune it out as a prelude to dealing with automated phone system hell.

“Press 1 to do this.” “Press 2 to do that.” Then, the 15th choice on the list is “press 0 to speak to a human.” The message is often accompanied by relentless music, punctuated with commercials and assurances that “your call is important to us.”

I don’t think in these situations there’s any doubt in the caller’s mind that their words are being recorded. Most of us accept it’s useful to record these conversations for quality assurance purposes. We also understand knowing a call is being recorded helps keep our behaviour civil.

While we accept service providers recording us, many of us give little thought to whether we’re being recorded at other times. The Internet never forgets. A mobile phone or surreptitious recording device also doesn’t forget. Think about all those security cameras in stores and malls, on highways and traffic lights, and most important for our purposes, in homes. The unblinking eyes of all these devices guarantee what we do (and perhaps say) is being watched and recorded.

What if a seller (or seller’s REALTOR®) decides to record what’s said and done at a showing or what’s said in the driveway between the buyer’s Realtor and the clients after the showing? Is it legal for someone to record what you say and do without telling you? I was asked this question recently and I didn’t know the answer, so I turned to our lawyers. Here's their response. (Please remember: you should get your own legal advice if you have specific questions on this subject.)

A seller who surreptitiously records communications between individuals attending an open house or a property viewing commits a criminal offence in doing so. Further, a seller who engages in such activity also runs the risk of being sued civilly by prospective or actual purchasers of real estate. This applies to both the commercial and residential real estate context.

In the commercial real estate context, an organization that surreptitiously records communications between individuals attending an open house or a property viewing for one of its commercial properties breaches private sector privacy statutes (PIPA or PIPEDA) and runs the risk of a complaint being made to the Office of the Information and Privacy Commissioner, which could result in an investigation, a public finding, or an order being issued against the organization by the commissioner and a resulting civil claim for damages by the affected individuals.

A Realtor who knowingly uses information obtained through such surreptitious audio recordings described above commits a criminal offence.

Further, this Realtor breaches private sector privacy statutes in using such information and likely breaches the REALTOR® Code as well. Realtors who knowingly use information obtained through surreptitious video or audio recordings also run the risk of being named in a civil lawsuit for damages brought by individuals affected by such surreptitious recordings.

It is prudent for a Realtor to routinely and proactively raise this issue with sellers they represent, clearly telling them that they are expected not to engage in surreptitious video- or audiotaping. Further, the Realtor should make clear that they can’t be involved in, or make any use of information obtained by, such conduct.

A Realtor may explain to sellers that if they wish to video- or audiotape an open house or property viewing, anyone attending that open house or property viewing must be notified that their communications and/or actions will be recorded, and they must be told the purposes for the recording. Any notification should be done both verbally and in writing. Realtors should retain documentation of this notification to minimize the risk of any liability arising from the situation.

A Realtor who becomes aware that a seller has surreptitiously video- or audiotaped individuals at open houses or property viewings, notwithstanding having been cautioned as set out above, should advise the sellers that they can no longer act as the seller’s representative.

In light of some sellers surreptitiously video- or audiotaping individuals at open houses or property viewing, it’s prudent for Realtors to advise their purchaser clients to refrain from discussing the merits of the property or any possible offers while attending an open house or property viewing, and to wait to discuss these matters until they are in a private setting.

If a Realtor acting for a purchaser has reason to believe that surreptitious video- or audiotaping is occurring during an open house or property viewing, they may wish to reinforce the cautions noted above with their clients and also raise this issue with the seller’s Realtor at the first reasonable opportunity.

Maybe we should consider adding a postscript to the “Please remove your shoes” sign: namely, “Everything you say and do is being recorded.”

Sadly, it seems this may be necessary to give our buyers a heads-up. Just pretend the sellers are home (even if they aren’t) when you show properties from now on.