Smile For the Camera

Smart home technology, devices and environmentally friendly features of a home are becoming increasingly popular with sellers and their potential buyers.  Remotely controlling automated systems and optimized functions such as lighting, temperature and security with a phone or tablet are appealing selling tools. What is even better is that many of these devices and systems are becoming more affordable.

A wireless home security and surveillance kit can be bought for as little as $99 on the internet. From doorbell cameras to indoor and outdoor cameras, many homeowners now have access to a little more peace of mind in keeping themselves and their belongings secure.

But what happens when they are ready to sell their home in regards to recording potential buyers? What should buyers keep in mind when they are looking at homes to buy? Below is a recent article put out by Louisiana Realtors.

Who is Watching Me? — LA Realtors

By: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
-Patty McMurray and Natalie Maples

Many homes and buildings are now equipped with video and audio surveillance.  Property owners may have video and audio cameras at their front entrances.  They may also have security cameras inside the building or home, or on the perimeter of the property.  For example, they may have a doorbell, a security system, a “nanny cam” or baby monitor that records video or audio, or, in some cases, all of the above.

Generally, a property owner has the right to monitor what happens within the four walls of his or her property.  A prominently displayed surveillance system and/or conspicuous signs alerting visitors that a system is in use can deter would-be criminals from taking an owner’s personal belongings.  However, in the context of selling a home, they can also provide negotiating advantages to sellers: these surveillance devices may allow sellers to intercept conversations between prospective buyers and the buyer’s agent.

What obligation, if any, does a property owner have to notify their REALTOR® of the recording devices?  What obligation, if any, does a REALTOR® have to notify potential buyers that video or audio equipment may be recording them while they are viewing a listing?

STATE AND FEDERAL LAW

Both federal and state laws apply to audio and video surveillance.  Louisiana is a “one party consent” state.  This means that a person may intercept communications in two instances: 1) if the person recording the communication is a party to the communication being intercepted, or 2) if the person doing the recording is not a party to the communication, one of the parties to the communication has given prior consent to the interception of the communication.[1]  However, the recording is not permitted by Louisiana law if the audio or video recording is being done for the purpose of committing a crime or a tortious act.[2]

Video surveillance without an audio recording has a different standard than recordings with both audio and video.  The federal standard for evaluating video-only surveillance is whether an individual would have a reasonable expectation of privacy in the location where the recording is taking place.  Although a homeowner enjoys a “zone of privacy” in their own homes, a prospective buyer generally does not have an expectation of privacy in someone else’s home.  There are limits to this, however, as a potential buyer would not expect to be recorded while in the bathroom, where a reasonable expectation of privacy exists in any circumstance.

Louisiana law does not expressly prohibit the video recording or recording the image of someone unless that video or image is recorded without consent and the video is to be used for a lewd or lascivious purpose.[3]  Accordingly, a videotape without audio is generally permissible under Louisiana law without providing advance notice or obtaining the consent of the parties.

There are no Louisiana or Federal cases on point wherein an unsuspecting homebuyer’s conversation has been recorded and used in negotiations.  There have been some cases where conversations of buyers and/or their agents are intercepted through “pocket dialing”[4] but these cases are distinct from the issue of a property owner’s right to maintain video or audio recording on his or her property.  However, out of an abundance of caution, and to avoid a potential claim that an illegal or unethical recording was made, or a claim that ethical obligations were violated intercepting conversations of buyers, homeowners may want to disclose the presence of video surveillance devices on the property to potential buyers prior to a showing of the property.

[1]      La. R.S. 15 § 1303(c)(3)

[2]      A tort is a legal wrong committed upon the person or property independent of contract.  It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual. In the former case, no special damage is necessary to entitle the party to recover. In the two latter cases, such damage is necessary.

[3]      La. R.S. 14 § 283(a)(1)

[4]      Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015)

[5]      Finley Maxson, “Window to the Law: Video and Audio Surveillance,” National Association of REALTORS® (available online at https://www.nar.realtor/videos/window-to-the-law/window-to-the-law-video-and-audio-surveillance-issues).

 

0 thoughts on “Smile For the Camera”

  1. Reply

    Thanks for this post. I really like your point of view.

  2. Reply

    Your article is very useful. It’s really helpful and informative.

Leave a Reply

Your email address will not be published. Required fields are marked *

Bot Detection: What year was the year before last year?