Disclaimers, Your Personal Information and That Kind of Stuff

PRIVACY INFORMATION

The California Consumer Privacy Act and You (and Real Estate)

If You’re a California Resident, You Have Certain Protections When It Comes to Your Personal Information Generally 

California’s Legislature enacted the California Consumer Privacy Act granted California residents certain privacy rights controls over any “personal information” that private companies may collect from residents during the course of business. The Act came into effect on January 1, 2020 and is codified in the Civil Code starting at section 1798.100. 

“Personal information” is purposefully a broad term. Certain information such as ownership and mortgage records linking an individual and their property is already a matter of public record. The Act’s definition is meant to address information that, while not appearing in public records, could still be used to linked to you, either directly or indirectly and includes property marketing photographs and sales information. Beyond that, however, other personal information that you would consider private is likely to be collected as part of the sales process. Depending on the circumstances, you may the right to “opt out,” to stop the transfer of your personal information to others and request that certain businesses delete your information entirely. Importantly, not all businesses are subject to the Act’s provisions, only ones that meet certain criteria, including one that requires the business “[derive] 50 percent or more of its annual revenues from selling consumers’ personal information.” (Section 1798.140 subd.(c)). 

How Your Information Usually Gets Used in the Real Estate Context 

How does your information get used in the real estate context? A real estate broker (and their agents) will submit property information to various Multiple Listing Services as part of their marketing process in order for buyers to find the property and as required by applicable membership regulations governing how and when REALTORS are to report listing and sales information to a given MLS. As a reminder, an MLS is an online clearinghouse and repository of sales information for a given geographic area administered by local REALTOR associations. 

The National Association of REALTORs has its own ethical guidelines and standards of practice which bar a REALTOR from disclosing or using any confidential client information to the disadvantage of their clients or to a REALTOR’s own advantage during an engagement and after the client-agent relationship ends.   

Through the MLS, personal information is made available to real estate brokers and salespeople, and others. Even after a sale is complete, the MLS distributes sales information to the real estate community. Brokers, agents and, through data syndication, MLSs may also share your personal information with others who post the personal information on websites or elsewhere, or otherwise use it (think Zillow or Redfin and other companies like CoreLogic and/or various title companies). What this means is that apart from salespersons, agents, brokers and their clients, various service providers and companies in a real estate transaction may also be engaged in using or sharing data involving your personal information.

Covered “business” or not, keep in mind that real estate brokerages, their salespeople and agents need — and are allowed — to keep information collected in order to effectuate a sale; they’re also obliged by records-keeping laws and regulations to keep this information for at least three years, with best business practice guidelines saying records should be retained for longer.

Folks who have interpreted the Act have come to the conclusion that an MLS would be, at most, considered a “third party” under the Act. Third parties are not required to delete personal information. And like real estate brokerages, even if an MLS is a covered “business,” MLSs are also required by law to retain and make accessible in its computer system any and all listing and other information for three years.

So What Does All of This Mean? 

Setting aside all of that, we do want to note that because most MLS systems are more akin to an online clearinghouse and data repository, you’re unlikely to have any direct contact with the MLS or entities that receive MLS data syndication information. And while MLS systems are administered differently and deploy various industry standard safeguards, MLSs are inherently passive and as a logical consequence of this may not and cannot be aware of how information is exchanged or used nor can an MLS track who consumes that information.  

One way to limit access to your personal information, is to inform your broker or salesperson you want to opt-out of the MLS. This runs counter to most industry practice and will likely impact the final sale price as you would be significantly limiting the number of buyers who could find your property if they can find it at all. The presumption for publication to an MLS strong as REALTORS are required to post a listing to their applicable MLS within 2 or 3 days of signing a listing agreement with a seller. Even withholding entry of your property from an MLS during its preparation or for a temporary time, while common practice, still requires a completing a special form that also has the option of keeping the listing off of an MLS permanently. 

If you have any questions as to what this may mean to you and your data, feel free to contact us directly, but rest assured your information will be kept confidential to the greatest extent as practicable and that any disclosure of information in the real estate and MLS context is something that happens often with appropriate safeguards being taken every step of the way.