News
April 1, 2018

Security Cams Test Home Tours Privacy, Courtesy, Legalities

By AARON TAYLOR

There was a time, and it wasn't that long ago when a Realtor® and a client could have a frank discussion about what the client liked or disliked during a home tour. Those days are gone.


Aaron Taylor
2018 NETAR President

Politicians and celebrities are not the only ones who have to be wary of a "hot mic" these days. We live in a world where our cell phones track us and retailers compile vast amounts of information about where we go and what we buy. The number of listening and recording devices is everywhere. And that can be an issue when a property is being marketed.

A couple of years ago Northeast Tennessee Association of Realtors® (NETAR) Past President Louie Leach wrote a column that raised some eyebrows. He cautioned buyers and agents not discuss anything that they won't say in front of a seller during a walk through.  What sounded shocking back then has become a best practice.

A recent MarketWatch article reported that "As homes become smarter, real estate agents and home buyers are increasingly finding there’s an extra set of eyes and ears on them as they tour properties for sale. Realtors® should expect everything from old-fashioned security cameras to newer contraptions that are tracking their conversations and actions. This is raising fresh concerns about privacy, courtesy and legality in a transaction that’s already fraught with emotion and potentially full of pitfalls."

The article personalized the issue with a story about a Savannah broker and a client.

"Andie DeFelice said she was unaware she and her client had been watched by the seller last fall when they toured. That is, until after the deal settled and the client was meeting a neighbor who informed him, “I just want you to know the guy who sold the house knew he had a buyer the minute you walked through.” The neighbor was able to repeat the conversation between the client and broker when they had first toured the property. 

“It’s one of those things where it is the person’s home, they have the right to do whatever—but you feel a little violated,” DeFelice says."

Actually, there's more to it than that:

There are laws about when and how a person can be recorded and when they can't.

The summary explanation of the law on the audio recording in Tennessee is "a person may record oral conversations where either the person is a part to the conversation, or at least one of the participants has consented to the recording."

When it comes to photographs or video Tennessee Code says, "A person may not knowingly photograph, or cause to be photographed an individual, when the individual has a reasonable expectation of privacy, without the prior effective consent of the individual."

Of course, that begs the question: Does a buyer have a reasonable expectation of privacy when touring a property"?

That won't be settled until there's case law or until the Legislature gets involved.

Until then the National Association of Realtors® (NAR) has some suggestion and an update on this evolving issue in a Window on the Law segment.

"First, listing brokers should know whether surveillance devices are present on the property. In at least one state the Realtor® association has created an addendum to the listing agreement that requires the property owner to disclose such devices. Devices like baby monitors or so-called nanny cams that make recordings may not be used in other states without the consent of the individuals being recorded.

"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 either 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.  At least one MLS has a rule requiring a listing broker to disclose the presence of recording devices on a property.

"Buyer representatives should make sure to make their clients aware of recording devices disclosed or known to them and 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 later claimed to be unaware of a disclosed recording device."

The full Window on the Law Video by NAR Senior Counsel Finley Maxon can be found at https://www.nar.realtor/videos/window-to-the-law/window-to-the-law-video-and-audio-surveillance-issues

Aaron Taylor is the 2018 president of the Northeast Tennessee Association of Realtors. The real estate education and trade group is the voice for real estate in the Tri-Cities and has over 1,200 local Realtor® members and almost 100 affiliates

 

 

 

 

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