The days of having a frank “I like this, or this needs to be fixed” discussion while touring a property are as dead as disco. Odds are you’re on camera whether or know it or not. In fact, savvy agents caution their clients to wait until they’re back in the car or at another secure area before having meaningful discussions.

There are cameras everywhere. The tracking device you carry around with you – also known as a cell phone – is just one example. And they affect real estate deals beyond the virtual tour. A third of all sellers admitted in one survey that they use hidden cameras to eavesdrop on showings.

Some said they wanted to find out what buyers like and don’t like. They wanted an edge on the market, and what better way is to be a fly on the wall during a showing.

Another group said they did it to ensure their home was safe during showings or for other security reasons. And one-in-four said they wanted to hear or see how their real estate agent was doing their job.

This issue has been on Realtors’® radar for several years. The National Association of Realtors® (NAR) legal staff issued advisories on it as far back as 2015. Here’s the 2022 version of NAR’s legal experts’ advice: https://www.nar.realtor/videos/window-to-the-law/video-audio-surveillance-2022

NAR experts say listing brokers should know whether surveillance devices are on the property. Once the listing broker knows that there are surveillance devices present, they should share this knowledge with anyone visiting the property to avoid any later claims that illegal recordings were made. This could be accomplished by posting notices on the property alerting all visitors that they may be recorded during the visit. If audio recording is being done, then obtaining consent from the visitors may also be required. Another way to disclose the presence of surveillance devices would be to disclose the presence of these devices in the MLS comment fields.

A buyer’s representative should make their clients aware of recording devices disclosed or known to them. They should consider making this disclosure in writing, such as in an email. While such a disclosure is not legally required since the buyer’s representative is not the one making the recording, it would help protect them from any later allegations if a client claimed to be unaware of a disclosed recording device.

Many buyers and their agents suspect they’re being watched. More than a quarter of the survey respondents said their agents warned them beforehand that they might be recorded during a showing. While some shrug it off, 41 % said they would back off a listing if they found out they were being secretly recorded. And more than half (53 %) said secret recordings were unfair and an invasion of privacy.

If current market conditions and surveillance concerns make buyers feel like there’s caught between a rock and a hard place, there’s a simple thing they can do to keep what they don’t want the seller to know secret. It’s the old ounce of prevention advice. They should make notes during a showing but wait until they are outside the home and in their agent’s car or office to discuss specifics or bidding strategy.