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If you’re in the market for a house and know what other houses in the area are selling for, would that help you to make an offer?
This question is at the heart of the lengthy proceedings between the Competition Bureau and the Toronto Real Estate Board (TREB). The Bureau wants anyone to be able to know what houses sell for by giving them access to the Multiple Listing Service (MLS) owned by real estate board. TREB says the information is private.
In a Supreme Court of Canada decision given last week, the parties were basically told to keep fighting.
The selling prices of homes are currently the property of real estate boards. When buyers or sellers use an agent, they agree that the purchase or sale price will be available to others using an agent to buy or sell. They have not agreed that the broader public should also have access to this information.
Real estate agents argue that since they pay to build and maintain MLS systems, people should not be able to get that information for free. It is the same, they argue, as asking Bell Canada to let others use their network for free to offer consumers lower phone prices.
The case was first heard at the Competition Tribunal in April 2013. TREB argued that privacy laws mean this information can not be made available without the permission of the buyers and sellers involved. The case was thrown out on the basis that since TREB is not competing with anyone, it is not abusing any position in the market.
The case then went to the Federal Court of Appeal where judges decided late last year the case should go back for another trial in front of the Competition Tribunal. This was confirmed by the recent Supreme Court decision.
So after two years of legal bills in the millions of dollars, we are back to where we started, with another hearing likely within a year.
I still can’t figure out why the Privacy Commissioner of Canada has not come out and said where it stands. This would probably lead to a settlement. In prior decisions, the Commissioner has said selling prices are private and no real estate agent can advertise what your home sold for without your permission.
Some believe that if selling prices are widely available, you could figure out how to buy a home yourself, without an agent. I don’t think it will make any difference. Selling a home by yourself isn’t easy. Buyers will find out the same thing.
On a separate privacy issue, I am often asked whether you can take pictures of appliances when visiting a seller’s home. In my opinion, a seller is inviting you to look over the house, including any appliances, they shouldn’t complain if you took pictures to make sure that you are receiving on closing what you expect to receive.
Even though there is a lot of information out there, it is not easy to buy or sell your home by yourself. Be careful.
Mark Weisleder is a lawyer, author and speaker to the real estate industry.