Be careful what you say at an open house
So many homeowners now have smart home technology in their home. Everything from smart doorbells, TVs, audio devices, and cameras can be used to monitor both video and audio in home. California is a dual consent state when it comes to audio recordings. This means that a Seller with smart home devices that capture audio is required not only to notify guests, but to obtain their consent for audio recordings. It's still unclear how this will actually play out as the law in this area develops around these smart devices. The National Association of Realtors and the California Association of Realtors are both keep close tabs as this evolves.
Not So Private Remarks: Security Cameras Can Become Illegal Listening Devices During Showings
Have you cringed at some of the remarks your clients make during an open house or showing? Things like; “This room is bringing back disco,” or “My grandmother had this same wallpaper and we hated it then.” And while some comments are a bit humorous, others can influence and potentially damage the transaction. We’ve heard agents say that if a seller hears a buyer is willing to go all the way for a home, all negotiating power is lost.
Those secret comments might not be so secret anymore. The same cameras and audio equipment used to make homes safer, could be recording you and your client without warning. That’s a problem. Potentially, a legal one. The National Association of REALTORS®, (NAR) and the California Association of REALTORS®, (CAR), are offering advisories about this issue. Depending upon state law, both those present at the showings and homeowners could find themselves on the wrong side of the law.
It is important to know whether a client’s property has active audio and video recordings. CARs legal department offers this advisory:
- Audio recordings without consent is illegal in California
- Video recordings without audio (sound)– are lawful except where there is an “expectation of privacy,” such as a bathroom
- Under wiretapping laws, it’s illegal to record oral communication in a surreptitious manner, such as with a hidden camera or other secret recording device
Hidden video is okay if it is;
- Used for a reasonable purpose (preventing theft or nanny cam, etc.)
- No placement where expectation of privacy (a bathroom, spa, etc.)
- Not used for a commercial purpose
The CAR legal team suggests the best practice is to provide notice at the property. Also, agents should document that notice was given. This can be done by taking a picture.
Ultimately, it is the homeowner’s responsibility to manage their recordings in a lawful manner, but real estate professionals should be aware of active recordings at their listings, and the implications of them.
It is also wise to watch for future articles about active audio and video recordings in industry publications. There will be more to come on this emerging issue.