Email Marketing Compliance for Real Estate Agents in Canada and the USA

Most of the email a real estate agent sends is commercial: listing announcements, newsletters, market updates, even a friendly check-in that mentions your services. In Canada that brings it under Canada’s Anti-Spam Legislation (CASL). In the United States it falls under the CAN-SPAM Act. This article explains how each law applies to the situations agents run into every week.

Two laws, two approaches

The biggest difference between the two laws is when you’re allowed to start emailing someone:

• CASL is opt-in. You need the person’s consent before you send a commercial electronic message, apart from a few specific exceptions.
• CAN-SPAM is opt-out. You can email someone without asking first, but every message has to meet the law’s requirements, and you must stop when they ask.

Because CASL’s consent rule is stricter, many agents who email people in both countries simply apply it to everyone, and make sure every message meets the content rules of both laws. That way one set of habits covers both sides of the border.

Canada: CASL

Which messages it covers

CASL applies to commercial electronic messages: email, texts and similar messages where one of the purposes is to encourage someone to take part in a commercial activity. A newsletter that is mostly helpful content but also invites readers to book a home valuation is still commercial. It applies when a computer system in Canada is used to send or to read the message.

Express consent

Express consent means the person actively agreed, for example by ticking an unticked box on a sign-up form. When you ask, CASL expects you to explain why you’re asking (what you’ll send), say who is asking, with your mailing address and another way to reach you, and tell people they can withdraw consent at any time. Pre-ticked boxes don’t count. Express consent doesn’t expire until the person withdraws it.

Implied consent

In some situations consent is implied, usually for a limited time. CASL’s definition of an existing business relationship explicitly includes the purchase or lease of land or an interest in land, which makes several parts of it relevant to agents:

• A purchase, sale or lease, including buying your services, gives implied consent for two years from the transaction.
• A written contract with you, such as a listing or buyer representation agreement, gives implied consent while it’s in force and for two years after it ends.
• An inquiry or application, such as a question about a listing or a request for a valuation, gives implied consent for six months.
• Conspicuous publication: a business email address that someone publishes, for example a lawyer or mortgage broker on their firm’s website, without saying they don’t want unsolicited messages, when your message relates to their business role.

Implied consent runs out, so the practical habit is to ask those contacts for express consent while it’s still valid.

Messages that don’t need consent

A few kinds of message are exempt from the consent requirement. Two matter most for agents:

• Answers and quotes they asked for. A message that only provides a quote or estimate someone requested doesn’t need consent. Adding that person to your newsletter does.
• One message after a referral. CASL’s regulations allow the first message to someone you were referred to, if the person who referred you has a relationship with both of you. The message must give the full name of the person who referred you and say it’s being sent because of that referral. After that first message, you need consent like anyone else.

Messages to people you have a genuine family or personal relationship with are excluded from CASL’s consent and content rules, but “personal relationship” is defined narrowly: real, voluntary two-way contact, not someone you met once or are connected to online.

What every message must include

• Identification: who is sending, and on whose behalf if that’s different, with a mailing address and at least one of a phone number, email address or website. This information must stay valid for at least 60 days after you send.
• An unsubscribe mechanism that’s free and easy to use, works for at least 60 days after you send, and takes effect within 10 business days.

If you’re ever asked, it’s up to you to prove you had consent, so keep a record of how and when each person agreed. CASL is enforced by the CRTC, and administrative monetary penalties can reach $1 million per violation for an individual and $10 million for a business.

United States: CAN-SPAM

The CAN-SPAM Act covers commercial email, including email to other businesses, and it applies to a single message just as much as to a bulk send. It’s enforced by the Federal Trade Commission (FTC). Its main requirements are:

• Accurate headers. The From, To, Reply-To and routing information must be accurate and identify who sent the message.
• Honest subject lines that reflect what the email is about.
• Identify the message as an advertisement, clearly and conspicuously, unless the person gave you their consent to receive it.
• A valid physical postal address: a street address, a post office box registered with the US Postal Service, or a registered private mailbox.
• A clear way to opt out that works for at least 30 days after you send. Opt-outs must be honoured within 10 business days, without charging a fee or asking for anything more than an email address, and you can’t sell or transfer the addresses of people who opted out.
• Responsibility for others. Hiring someone to send your email doesn’t move the legal responsibility off you.

Messages whose main purpose is a transaction or relationship the person already has with you, such as updates on their own purchase, are mostly exempt, though they still can’t contain false routing information. The FTC reads that exemption narrowly, so a closing update that turns into a promotion is judged by its main purpose. Each email that breaks the law can bring its own civil penalty, at an amount the FTC adjusts for inflation each year (currently more than $50,000 per email). CAN-SPAM overrides most state laws on commercial email, except those that deal with falsity or deception.

Everyday situations for agents

Open house visitors

In Canada, a visitor who leaves their email on a sign-in sheet has arguably made an inquiry, which gives implied consent for six months at most. The clearer approach is a sign-in form with an unticked box: “Send me new listings and market updates by email. I can unsubscribe at any time.” In the US you can follow up without that box, but asking still tells you who actually wants to hear from you.

Past clients

A client who bought or sold with you usually gives implied consent under CASL for two years. Use that time to ask for express consent: a closing thank-you or a first home anniversary email is a natural moment to ask, “Would you like me to keep sending you market updates?”

Friends, family and your sphere

Close family and genuine friends are excluded from CASL, but your wider sphere of influence usually isn’t: a neighbour you’ve chatted with or a parent from your child’s school doesn’t automatically count as a personal relationship. When in doubt, ask.

Referrals

If a past client introduces you to a friend who’s thinking of buying, you can send that friend one message under CASL’s referral rule, naming your client and saying they referred you. Ask for consent in that message if you’d like to keep in touch.

Website and portal leads

Someone who asks about a listing on your website has made an inquiry. You can answer them, and you have six months of implied consent, but a sign-up form with a clear consent box is better if you plan to add them to your newsletter. Consent someone gave to a third-party website doesn’t automatically extend to you, so check how a purchased or shared lead was collected.

Expired listings and FSBOs

Finding a homeowner’s email address online doesn’t give you consent in Canada: conspicuous publication only covers business addresses, for messages related to that business. Phone and text outreach has its own rules too (see below).

Lawyers, lenders and other agents

Business-to-business email is covered by both laws. Under CASL, a published business address can give implied consent for messages relevant to that person’s role; under CAN-SPAM, the usual requirements apply.

Bought or scraped lists

Don’t use them. Under CASL nobody on a bought list has given you consent, and under CAN-SPAM harvesting addresses from websites makes a violation more serious. Reputable email platforms, including OneHive Mail, don’t allow them.

Clients on both sides of the border

Real estate crosses borders: Canadians buy in Arizona and Florida, and Americans buy in British Columbia and Ontario. Because CASL applies whenever a computer system in Canada is used to send or read a message, a US agent emailing a client in Canada can be covered by it, and a Canadian agent emailing US clients still has to meet CAN-SPAM. The simplest approach is the one described at the start: get consent the CASL way, include everything both laws ask for in every email, and make it clear your email is promotional when it goes to US recipients who haven’t given consent.

Beyond the anti-spam laws

• Your regulator’s advertising rules. Real estate regulators in each province and state have their own rules for advertising, such as showing your brokerage’s name, and these apply to email too.
• Privacy law. Collecting and using personal information is governed by Canada’s PIPEDA and by provincial laws in Alberta, British Columbia and Quebec, and by a growing number of state privacy laws in the US.
• Mailbox providers. Gmail and Yahoo ask bulk senders to authenticate their email, offer one-click unsubscribe and keep spam complaints low; Google asks senders to stay below a 0.3% spam rate. These aren’t laws, but they decide whether you reach the inbox.
• Texts and calls. Texting and phoning have their own rules: in Canada, the CRTC’s telemarketing rules and the National Do Not Call List; in the US, the Telephone Consumer Protection Act and the National Do Not Call Registry.

How OneHive Mail helps

• Consent on record: record how each contact agreed, as express consent or implied consent from a customer relationship, an inquiry or a published address, with a note on where and when. Sign-up forms store the exact wording people agreed to, with single or double opt-in.
• An automatic footer with your business name, mailing address, licence details and an unsubscribe link on every campaign and automation email.
• One-click unsubscribe that takes effect straight away for every campaign and automation.
• Suppression: people who unsubscribe, bounce or report spam aren’t emailed again, even if they’re imported or added again later.

OneHive Mail records the consent type and date, but it doesn’t stop emailing a contact when implied consent runs out. Keep an eye on those dates, for example with a segment on the date contacts were added, and ask for express consent in time. Our guide to email consent basics covers the essentials in a shorter form.

A short checklist

1. Do I have express consent, or valid implied consent, for everyone I’m about to email?
2. Am I relying on implied consent that will soon run out? If so, have I asked for express consent?
3. Does the email show my business name, mailing address and a way to reach me?
4. Is there a working unsubscribe link, and are unsubscribes honoured straight away?
5. Are the From name and subject line honest about who I am and what’s inside?
6. For US recipients who haven’t given consent, is it clear the email is promotional?
7. Does it meet my regulator’s advertising rules, including my brokerage’s name?

Official sources

• Government of Canada: Canada’s anti-spam legislation
• Justice Laws: Canada’s Anti-Spam Legislation (S.C. 2010, c. 23) and the Electronic Commerce Protection Regulations, which include the referral rule
• CRTC: Frequently asked questions about Canada’s anti-spam legislation
• Federal Trade Commission: CAN-SPAM Act: A Compliance Guide for Business
• Office of the Privacy Commissioner of Canada: PIPEDA
• Google: Email sender guidelines