Homebuyers should watch what they say during home viewings, according to an Ontario real estate agent who says two of her clients recently used cameras and microphones to eavesdrop on potential buyers.

Juliana Webster says the rules should be changed to force sellers to say if homes are under surveillance.

"When you go into a private home you don't naturally expect [surveillance]," said Webster, who works in Hamilton.

The wrong sort of comment, she warns, "could be used against the buyer, like, if they said, 'Oh, we would totally pay much more for the house.'"

Webster said she was unaware of the surveillance until her clients mentioned it. One offered to help a potential buyer who had been observed trying to use an appliance in the home. The other heard something that assured them the sale would go through.

You don't want to use it, but it could be tempting for some people. - Juliana Webster, real estate agent

Neither seller had installed the surveillance devices specifically to monitor potential buyers, said Webster, and it's not clear if they were hidden, or had simply gone unnoticed.

The sellers did not use the information to their advantage in negotiations. But Webster says it could be "tempting."

"You can see how somebody could listen in and get some very interesting information. And then, when it's in your lap, you don't want to use it, but it could be tempting for some people. It could be tempting for anybody."

"If your comments and their comments were being recorded certainly that puts the ball in the other person's court doesn't it?"

Webster has been a real estate agent since the 1980s. She likens the possibility of surveillance to a previous issue in the industry, when, unlike today, it was common for sellers to be in the home during viewings.

The question… is whether people looking at the house have a reasonable expectation of privacy. - Kirsten Thompson, lawyer

"Once upon a time, when I started in real estate, the sellers were always there in the house and people were much more careful about what they said," she said.

She wants listing agreements to say if there's audio or video surveillance onsite, and for a warning sign to be posted on the site.

In Ontario, the ministry of government and consumer services set the rules for the industry, which are enforced by the Real Estate Council of Ontario (RECO).

In a statement, the minister's press secretary David Woolley said realtors are subject to federal privacy law and could not use this sort of surveillance material "for commercial purposes… without the consent of an individual involved in the transaction."

The council agrees buyers and brokers should be cautious.

"Because recording devices are becoming more and more popular, we advise salespeople and brokers to caution the homebuyers… that there may be a recording device in the home," said deputy registrar of regulatory compliance Kelvin Kucey, in a statement.

Real estate agent Juliana Webster says the rules should be changed to force sellers to say if their homes are under surveillance. (Alex Choi)

Complicated issue

Privacy lawyer Kirsten Thompson acknowledged the laws around this issue are complicated and may differ from a "common sense perspective."

Ontario's privacy legislation applies to commercial activities, and generally not private individuals, she says.

"So the question becomes whether or not selling a home is a commercial activity. If it isn't then the homeowner wouldn't have any obligations under privacy laws," Thompson said.

She says the law is less murky regarding the seller's real estate agent, who would be more clearly acting in a commercial capacity.

"It gets a little stickier when you start looking at the common law and that's whether… or not somebody has a reasonable expectation of privacy," said Thompson.

"So the question there is whether people looking at the house have a reasonable expectation of privacy in somebody else's house."

Thompson likes the idea of a sign warning of video surveillance as a good-faith gesture, but argues, legally, it would probably not be required.

Opening one's home for a viewing creates a situation similar to an amusement park or shopping mall, she says.

"It's sort of a private space… into which you are inviting the public. And so that changes the playing field in terms of the strength and quality of rights you may or may not have."

"If we're looking at the common law that would likely reduce the reasonable expectation of privacy."

To further complicate matters, Thompson said there's a difference between audio and video surveillance. Audio could fall under wiretap provisions of the Criminal Code, which in Canada typically requires one person in a conversation to consent to the recording.

Even though Webster believes a surveillance heads-up should be required, she's changed the way she operates entering any home.

"I do caution buyers… 'You can make comments but keep them neutral because gushing means to pay anything.'"