Four years ago, clients of mine purchased a luxury home in the $4-5 Million range.

It was a new build and it was beautiful.

The marketing for the home was a thing of beauty as well, and I know that both my clients were drawn in by the gorgeous photos, with the beautiful staging, and the really neat virtual tour.

We can talk for ages about real estate marketing and how high-quality 3D walkthroughs have been a game-changer, but for now, let’s just say that my clients enjoyed using this tool after they had purchased and as they waited for closing.  Rather than return to the home time and time again to plan for furniture purchases, or to look at paint colours, they simply used the 3D walkthrough.

The floor plans were also very helpful for furniture arrangement and planning what to purchase and what to keep from the old house.

Closing came and went, and as far as I knew, they were happy as clams!

Earlier this year, my client emailed me the following:

Hi David,

Hope you and the family are well!

All is good here at the house.  We absolutely love the house and the area, and the neighbours on both sides have young kids and it’s more than we could have ever hoped for!

There is one problem though and it’s something I’ve been meaning to email you about now for literally two years.

The listing agent’s website still has photos, floor plans, and a virtual tour of our house.  I don’t know what the rules are regarding marketing/advertising or who “owns” the photos now that we own the house, but I think that four years after we purchased there’s really no reason for these marketing materials to still be accessible online.

We had a security consultant come by the house and the first thing he said was that he Googled our address and he found a full video walkthrough and floor plans.  He said “This is like a blueprint for how to break into your home.”

Can you please contact the listing agent and ask him to take all this down?

It would give (name of spouse) and I great comfort.

Thanks in advance, and please keep in touch!

(name)

–

As happy as I was to hear from my client, I was immediately distraught upon receiving this email.

Why?

Well, obviously because he was upset, but to be quite honest, I was upset because I already knew how this was going to end.

Many of you are reading this right now, nodding your heads and preparing for me to share the outcome of this story.  Many of you have been in this exact same situation and have been disappointed by the result.

I don’t want to say that my glass was half-empty here, but I wasn’t counting on the listing agent to adhere to my client’s request.

I emailed him and shared what my client shared, saying, “This house was sold over three years ago and you still have photos, a virtual tour, and floor plans on your website.  My clients hired a security consultant who said that these floor plans are a ‘blueprint in how to break into their home.’  Can you please take all this down?”

He wrote back:

“No problem, David.  I’ll take down the floor plans.”

He didn’t add, “Now, screw off, and leave me alone,” but I could read between the lines.  I asked him to take down the photos, virtual tour, and floor plans, and he responds that he will take down the floor plans.

Really?  I mean, what’s in it for him?

He’s going to go out of his way to not adhere to a very reasonable request from an industry colleague, and one he’s dealt with before many times?

He’s going to risk reputational damage to keep a three-year old listing up on his website?

Really?

Yes, really.

Agents do this all the time, and it’s becoming an epidemic.

At the risk of taking your attention away from today’s blog, I want to run an experiment.

Open another tab in your web browser, go to Google, and search your home address.

What did you find?

Is there a virtual tour of your house or condo?  Are there photos?  Are there floor plans?

Is there a list price too?

How long ago did you buy?

Would you expect that this information would be taken down by now, or not?

If you don’t own property, or you haven’t bought in a while, then pick a friend’s address and Google it.  Not to be a nosey neighbour, but just in the context of this experiment.

What did you find?

How much of their privacy do you think is being invaded right now?

About a decade ago, I sold a luxury home in Rosedale for what was then an exorbitant sum of about $3.5 Million.

My clients were from out west and they were moving to Toronto for the first time.  They left behind their friends, family, and everything they had ever known, and planted roots in one of the most prestigious Toronto neighbourhoods.

As you might expect, all of their friends and family wanted to know where they ended up!  Some wanted an address so they could send housewarming gifts, and others just wanted to share in the joy.

But upon providing the address to their friends and family, they became the target of some backhanded compliments and gentle ribbing.

Why?

Because the sale price of their home was posted on the listing agent’s website, along with a series of photos.  No virtual tour, however, as this agent was too cheap to provide one, what with his $3.5 Million listing and all…

“Our friends back home are gawking at what we paid,” one of my clients said.  “We want that sale price and those photos taken down.  He has no right to keep that up there!”

The listing agent, who worked at my brokerage at the time, was not amenable.

I asked him nicely, from one colleague to another, and he laughed.

“Not a fucking chance,” he said to me.  “Those are my photos.  I have every right to market the house,” he said.

I told him, “The house has sold.  You’re not working for the seller anymore by marketing the property.  Leaving those photos up on your site, and publishing the sale price is simply marketing yourself.”

“That’s right,” he responded.  “I’m marketing myself.  I have every right to market myself, and why wouldn’t I?  That sale is a feather in my cap.  It’s a trophy.  It’s an accomplishment.  It shows people in Rosedale that I sell real estate in Rosedale, and that’s how I get future business.  Why would you even ask me such a thing?”

I told him, “Because these are people.  This is their home.  They paid top dollar for the house and they’ve made a reasonable request of you.”

He said, “Tell them to call their lawyer.”

And that was that.

Now, is my request “reasonable?”  This is a grey area, no matter which side you land on.

Most people will suggest that the listing agent was a jerk, but some of you, despite wanting to label him as such, will simply say, “It’s smart business.”

A client of mine reached out to me a few weeks ago and said that she bought a property in British Columbia and the listing agent was using the photos of her new house, not to market himself, not to market his presence in the area, but rather to sell the almost-identical house next door.

While she, like the people noted above, didn’t like the idea of her house being showcased on the internet for all to see, she also didn’t like that it was photos of her house being used for a different house.

She reached out to both the agent and his broker and both said it was fair game.

The irony is: he might not be guilty of unauthorized advertising, but he could be guilty of false advertising, since the photos are not of the property he’s marketing.

But that wouldn’t give my client any comfort, since she simply wants the photos of her house to be taken down.

So what are the rules here, you’re probably wondering by now?

Who owns the photos?

For starters, the photographer owns the photos.  Copyright law is massive.  It’s way beyond the scope of what we’re talking about today, but the “author” becomes the first owner of the copyright and that copyright may be assigned to another person.

When a real estate agent pays a photographer to take photos, those photos likely become the proprerty of the real estate agent.  I say “likely” because all law is a grey area that is to be argued, and some photographers could have a disclaimer, clause, or other legalese that seeks to merely assign a copyright or useage, rather than transfer ownership.  But for the most part, when a client commissions an author for a work, the work is the property of the client.

So when a real estate agent – in this case, the listing agent, publishes photos, a virtual tour, or floor plans of a property online, and a buyer purchases that home, can the listing agent claim “I own these photos” and thus keep them up online forever?

No.

Ownership of the photos isn’t the issue.

Permission to advertise is.

If you’ve purchased a property in the last few years, you might have noticed a “Schedule C” accompanying your offer.  Sometimes it’s not listed as a schedule and is simply a document titled “Permission To Advertise” and is provided by the listing brokerage.

Here’s a template example:

Note that this specifically states “THIS IS NOT A SCHEDULE TO THE AGREEMENT OF PURCHASE AND SALE.”

It feels like the author of this document is trying to ensure it’s not included in the agreement, otherwise, why state that?

Questions you’re probably asking yourself:

1) Do I have to sign this?

2) Why would anybody sign this?

3) What happens if you don’t sign this?

All good questions, and all with theoretical answers.

Do you have to sign it?  No.

Why would anybody sign this?  I’ll explain.

What happens if you don’t sign this?  That’s the problem.

In a red-hot market where there are twenty offers on a house, you do anything and everything you can to strengthen your offer.  You have an offer with no conditions, you bring a bank draft with you for the deposit, and you provide the seller with their desired closing date.  You might write a letter or even bake cookies!

So why wouldn’t you sign the advertising consent form?

That’s rhetorical.

I’ve come across this many times, and the result is always the same:

“We need this signed, please and thanks.”

Who really wants to put this to the test?

I would hate to think that a listing agent, upon reviewing a competitive offer that does not have a signed advertising consent form, would kick that offer to the curb.  But I wouldn’t put it past them.

Usually, it’s something subtle like: “Thanks David, offer received!  You neglected to include a signed advertising consent form.  Please have your client sign and re-submit, thanks!”

What would happen if I said, “My client refuses.  Please present our offer accordingly.”

I don’t know because I’ve never done that.  I’ve never had a client that refused, nor have I ever told one to.  But as I said before, who really wants to put this to the test?

I’ve often done deals where I did not include the advertising consent form with the offer, only to have the offer accepted, and four days later, the listing agent or their assistant sends me an email and says, “We need your buyer to sign the advertising consent form, thanks!”

Why would we do that after the fact?

You can’t imagine the fights I’ve had with agents over this.  After the fact, I’ll push back.  Why wouldn’t I?  What advantage is there for my clients to sign this after the buyer and seller have already agreed and have a completed and unconditional APS?

“David, my office needs this,” I’ve been told, which is nonsense.

“David, the seller wants this signed,” I’ve also been told, which is even more nonsense.

Then again, there are all kinds of instances of agents advertising sold properties, sale prices, and everything in between after not having consent, or not even attempting to get consent.

As I lament on a regular basis: many agents just don’t care.

Quite often, we’ll see one clause in a “Schedule B” instead of a dedicated document like the “Advertising Consent Form.”

Here’s an example:

Buyer and Seller hereby acknowledge that the sale of the property shall be reported to the Toronto Real Estate Board and agree to allow the listing and cooperating agents to use the property in future marketing materials, including address, list price, sale price, photos, and all MLS details, provided such is done in accordance with the guidelines of the Toronto Real Estate Board and the Real Estate Council of Ontario.

Is this really a “consent?”

I mean, is it on par with the dedicated document we looked at above?

Does it matter?

If this clause is included in Schedule B of the Agreement of Purchase & Sale, and the buyer initials that page, then the buyer is consenting, in my opinion.

Here’s another example:

The Privacy Act and Real Estate Council of Ontario’s Code of Ethics require REALTORS® to obtain written consent from Buyers and Sellers to advertise or otherwise market
any information about a property after an Agreement of Purchase and Sale has become firm.  The Seller and the Buyer hereby grant the Listing and Selling Brokerage permission to market the property, once the terms of this Agreement of Purchase and Sale have become unconditional, including “Just Sold” cards, property photography, the address, the listing price 3D tour and floor plans.  The Seller and Buyer grant the Listing and Selling Brokerages permission to advertise the sale price of the property.

This clause is a little lengthier and more similar to the “Consent To Advertise SOLD Properties” that we saw above, but note that this clause specifies sold cards, photos, the address, listing, 3D tour, and floor plans.

Here’s one more:

Buyer(s) and Seller(s) hereby grant A.B.C. Real Estate Ltd. Brokerage and their respective representatives the sole authority and permission to use any and all information related to this property in any and all marketing materials and formats to advertise and market the sale of the property both while actively listed and once sold in all media they deem fit including but not limited to advertising (print, broadcast, internet, other), press/publicity/media coverage, internet websites/portals/social media, flyers, for sale/sold signs, telemarketing, etc., both while the property is listed and once sold.  This is for the sole purpose of promoting the property, and/or the brokerage, and or the sales representative(s).

Wow.

“In all media they deem fit.”

“Sole authority and permission.”

“Any and all information.”

As a buyer, what are you really signing here, and what are you allowing?

Well, you’re allowing the listing agent to potentially keep that virtual tour up on the Internet forever, among other things.

Then again, just to provide a contrarian viewpoint here (because you know I love doing that…), if anything appears on the Internet, isn’t it there forever?

The minute that photos of a listing go up on MLS, a dozen websites scrape the data, and those photos can never be removed from the annals of the Internet.  Just ask anybody who ever texted a photo that they wanted back a moment or a week later, just how hard it is to remove something once it’s out there.

So then, is it naive for a home buyer to suggest that they want photos of their new home removed?  Well, I think wanting a virtual tour removed, or something as violating as detailed floor plans, is a completely reasonable desire.

Having said all this, the Toronto Real Estate Board has taken matters into their own hands.

Once photos are up on an MLS listing, they are there forever.

For years, there were a handful of agents who would consistently edit their listings after the properties had sold, and remove the listing photos.  Agents weren’t supposed to do this, but at the time, there was really nothing to stop them from doing so.

A large group of real estate agents banded together and demanded that this practice be eliminated.

You might ask, “Why, who cares?” but it’s because photos of a property in the MLS archives allow agents to do their job effectively when looking at comparable sales and pricing existing properties.

That aside, the point is that this practice wasn’t allowed.

So TRREB increased fines for these actions “up to $50,000.”

I can’t imagine there’s a lot of photo-deleting going on now…

Regardless, property owners don’t care if photos of their homes are in the TRREB archives.  They care if there are virtual tours, 3D walkthroughs, and floor plans of their existing homes showing up in the first search result on Google when somebody looks for their home.  Just consider that if you were looking for directions to a friend’s house and you put their address into Google, while Google Maps would pop up in the search results, so too would any real estate marketing on their home.

And that’s what irks home owners.

So when you’re buying a home, don’t sign the “Consent to Advertise” if you want to prevent your house from being displayed on the Internet for all of eternity, and ask your buyer agent to remove any clause about advertising from Schedule B.

But be honest here, folks: how many of you took my challenge and Googled your house?  Anybody want to share their findings? 🙂