BROKER RISK MANAGEMENT
WEEKLY PRACTICE TIP
Video and Audio Surveillance in Homes Listed for Sale
Q: The Sellers we represent have video equipment in their home which also records sounds. Should we post any type of notice at the house?
A: This is yet another example of law and technology not being in sync. There is no question that it is legal for a homeowner to take reasonable precautions to protect their home and their possessions whether or not their property is for sale. “Nanny cams” are often used to monitor in-home care providers and doorbell mounted security cameras are becoming quite fashionable as well.
So far, California homeowners are not legally obligated to provide any warnings about the existence of that equipment. It is thus very likely that property listed for sale will be equipped with video and/or sound recording devices without anyone knowing that they are on “candid camera.” Several real estate professionals in multiple states found out about these surveillance devices the hard way after videos of their “escapades” were posted on YouTube,
CALIFORNIA LAW: California Penal Code Section 632 specifies that it is a crime to record or eavesdrop on any confidential communication, including a private conversation or telephone call, without the consent of all parties to the conversation. The statute applies to “confidential communications” in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation and according to one appellate decision, this rule applies to the use of hidden video cameras by police to record conversations as well.
NOTE: Notwithstanding the desire to “document” conversations, it is illegal to record any telephone or private conversations that Sales Associates have with anyone, including but not limited to clients, other Sales Associates and Administrative personnel unless they (a) clearly disclose that the conversation will be recorded and (b) that all of the other parties to the conversation agree to be recorded.
The question then is does anyone going to an open house, a broker’s open or otherwise visiting a property that is for sale have an “objectively reasonable expectation that no one is listening in or overhearing their conversation?” That issue has yet to be formally decided by either the California legislature or the California courts. However, it should be noted that in the recently revised C.A.R. Listing Agreement forms, out of an abundance of caution, the California Association of REALTORS® is advising Sellers to post notices if the property has any security devices.
What then is the best advice for real estate professionals and their clients? Taking a page out of the history books, it is important to remember: “LOOSE LIPS SINK SHIPS.”
PRACTICE TIPS:
- All real estate agents should assume that there is some form of surveillance equipment at every home that is for sale regardless of whether it is on the MLS or even if it is their own listing. Real estate professionals should not make “confidential telephone calls” to anyone (including but not limited to their clients and other real estate professionals) while at properties listed for sale (both inside and outside of the house). Real estate professionals should act professionally at all times when they are at properties listed for sale and they should refrain from any type of conduct that could prove to be embarrassing if it were recorded and revealed.
- Selling Agents should caution their clients to completely refrain from having private conversations with each other or their agent at the homes that they visit (both inside and outside of the house) and that they should assume that the properties have security/surveillance equipment. Clients should also be warned not to engage in any conduct that could prove to be embarrassing if it were recorded and revealed.
- Selling Agents and their clients should never discuss their likes and dislikes about a home, its contents, the owners, the neighborhood or the strategies to be used in making an Offer while at the house; they may be tipping off the Seller as to their plans and/or could well lose the sale.
- Selling Agents should monitor the actions of their clients inside the house to ensure that they are not revealing confidential information and/or are not engaging in any type of illegal or embarrassing conduct.
- Listing Agents should recommend that Sellers post a reasonably visible notice if there is any type of surveillance equipment.
- Whether or not the Sellers choose to follow that recommendation, the Listing Agent should post a discreet notice (such as a stand-up card with the sign-in book) that the property is equipped with surveillance equipment. This is the professional and courteous thing to do.
WEEKLY PRACTICE TIP: DO NOT FORWARD TO CLIENTS. This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents. It may not be reproduced or distributed without the express written consent of Broker Risk Management. The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.