I’ve had several calls from members this past week asking about privacy-protected listings and cancel-protected listings.  

I’ve written about this topic in the past, for example, in Do you really want to play that card? and Privacy Protection: Who benefits? But I’ve decided to go back to a column—the best one, to my mind, that I wrote more than a decade ago, “Never say never,” appearing below with updates.  

Some members are not clear as to the meaning of the “privacy” and “cancel” protected listings.  

The Rules of Cooperation, Rule 6.06 states: 

The Board does not—and cannot—regulate whether sellers invoke this rule. Some members believe that attaching a privacy protection designation to their listings will prevent other members from contacting those sellers in the future. This isn’t correct. Privacy protection means that no member may ever use that MLS® listing information to solicit the seller or “to communicate with the seller to determine whether the seller requires additional real estate services,” as described in the rule and also in paragraph 2(c) of the “optional purposes” described in the Privacy Notice and Consent form. 

If, however, a member communicates with a privacy-protected seller and a) uses contact information that did not come from the privacy-protected MLS® listing, and b) the reason for the communication was not based on information related to that MLS® listing (for example, the listing just expired), then there has been no breach of 6.06. Examples could include general advertising mail-outs and/or cold-calling/canvassing of all homes in a geographical area or to all individuals belonging to an identifiable group of people. Or, if the member already knows the privacy-protected seller, has the seller’s contact information on record, and is not contacting the seller because the privacy-protected MLS® listing has expired. Remember, mail-outs should always comply with the Solicitation Guidelines and contain the disclaimer referenced in Rule 6.07: “this is not intended to cause or induce a breach of an existing agency agreement.” 

So if you are not using the MLS® information for the purpose of communicating with a privacy-protected seller, keep the contact information you’ve used handy in case a complaint is made. This way you can satisfy the Board that you didn’t breach Rule 6.06. It would also be a good idea to review the REALTOR® Code’s Article 20, and the Rules of Cooperation, Rules 6.05 and 6.07, before communicating with a privacy-protected seller. 

In summary, the use of client contact information from your own resources does not breach privacy protection rules unless b) above has been breached. Lastly, don’t forget that Do Not Call legislation applies to telephone solicitations. 

Note that several members have been disciplined by the Professional Conduct Committee in recent years for breaching Rule 6.06, with fines of up to $12,000. These discipline cases are published on rebgv.ca, and each published case contains a warning that members performing the same infraction are subject to increased penalty. 

The Board does not require members to cancel their listings. It would not be a breach of the rules for a member to contact the owner of a cancel-protected listing, because the property is no longer listed on the MLS® system. However, if a listing has been cancelled but not unconditionally released, then the cancel-protected commission clock may still be ticking (note that the Cancellation Form suggests 60 days, but the parties can agree to any period of time). Under the cancellation clause the seller still has an obligation to pay the commission if the property is sold during the cancel-protected period.  

As a result, the Board will not generally accept a new MLS® listing for that same property until the earlier of the original listing’s expiry date or the cancel-protected period has passed (at which point the listing status would show as terminated). The exception to this is detailed in Rule 3.18, which states that the seller and managing broker of the new listing brokerage must have signed a letter confirming that the seller is agreeing to pay commissions under both listing contracts. Cancel-protected status can be rescinded with an unconditional release.  

Keep in mind that Article 20-(20.2) specifically notes that it would be a breach for a REALTOR® to “advise a party to a contract that the party should attempt to breach the contract.” 

Has a colleague gone out of their way to help you? I’d like to hear about what they did. Send your bouquet to kspencer@rebgv.org.