Our next guest blogger is Jessica Edgerton, associate counsel at the National Association of REALTORS®. Following Lee Adkins’ post about voice assistant hubs, we wanted to share a look at the legality of having cameras and microphones in homes for sale.
Real estate agents and sellers sometimes use video recording devices to monitor open houses and walk-throughs. The motivations for surveillance are varied, and can be compelling. Video recording can offer an added layer of security for real estate agents conducting solo showings or open houses in remote areas. A prominently posted notice that security cameras are in place may act as a deterrent for physical attacks, theft, and vandalism. Some sellers and real estate agents may even use recordings to gain insight into a home’s marketability.
While surveillance technology can offer many benefits during the home-selling process, it is important to consider the possible legal implications. In general, individuals have the right to control legal activities within their own home. However, every state has privacy laws addressing the ways in which people may be permissibly recorded, and these laws vary widely. In addition, the laws governing audio surveillance versus video surveillance are not the same. It is therefore essential that homeowners and real estate professionals consult with an attorney prior to setting up any surveillance as part of a sales plan.
Video surveillance is generally permissible in any situation where an individual does not have a reasonable expectation of privacy. Because it would be unreasonable to expect privacy while one is in public, the ubiquitous presence of video cameras on street corners, at banks, and in public transportation is entirely within the bounds of the law. Similarly, if a video camera records a prospective buyer walking into a home’s entryway with her real estate agent during an open house, she would have a difficult time claiming that she had had a reasonable expectation of privacy. However, if the buyer steps into a bathroom to use the facilities, she would almost certainly – and reasonably – expect privacy. Therefore, homeowners should avoid installing cameras in bathrooms, even if the homeowner’s intent in doing so is both reasonable and innocent – for example, as an effort to prevent the theft of prescription drugs. (Instead, sellers should always make sure that medicines, weapons, and valuables are securely locked up or taken off-site during showings.)
With very limited exceptions, audio surveillance laws in every state require the consent of one or all parties to a recorded conversation. Know your state laws prior to utilizing any recording device that captures audio.
In addition to legal considerations, sellers and real estate agents should consider the ethical and reputational implications of making surreptitious recordings. The following best practices can help avoid reputational debacles involving recording devices:
- Provide Notice. Consider providing prior notice when recordings may be made during a showing. You can post the notice in the MLS or on the property, or send notification via email prior to showings and open houses. In addition, if any cameras have an audio recording function, be sure to disable the audio function or get all necessary consents pursuant to your state’s laws.
- Keep Recordings To Yourself. Never publish or share any recording you make of other people without their consent. The only exception to this is if you happen to record possible criminal activity – in that case, you should discuss the incident with the police, and provide them with the recording upon their request.
A Note to Buyers’ Agents: Don’t Take Privacy For Granted
Buyers and their agents should keep in mind that nanny-cams, surveillance cameras, mobile phones, laptops, and tablets are all capable of recording video and, in many cases, audio. Prior to any walk-through or open house, buyers’ agents should consider advising their clients of the possibility of hidden recording devices. A good practice is to simply save all thoughts on a house until everyone is back on the sidewalk.
Jessica Edgerton is associate counsel at NAR. Her work includes extensive membership education and outreach. She is a regular speaker on the subjects of cyber fraud, cybersecurity, and legal risk mitigation for real estate professionals. She contributes to REALTOR® Magazine, AE Magazine, and RIS Media on a wide range of risk management topics.