Your home is for sale, so should you use audio and video surveillance during showings?
With the evolution of the smart home, it's not surprising that we are being watched or listened to, even in private homes. Whether ensuring that nothing is stolen or hoping to get some real-time feedback, anxious sellers may try to rely on nanny cams, baby monitors, Nest cameras, laptops, or doorbell cameras. Though recordings have certain advantages, experts warn that it is also risky and in some cases illegal, such as in Colorado.
Questions do arise as to the seller’s use of audio and video surveillance in homes during property showings. Security devices are justifiably used in homes for security purposes, however, should they be used as a means of obtaining information on prospective buyers and their real estate brokers, or to acquire confidential information about a prospective buyer? The improper use of these devices could possibly result in civil or criminal liability.
In Colorado, audio surveillance needs the consent of at least one participant to the conversation before a recording can take place unless the eavesdropping device is used on one’s own premises for security or business purposes and notice is given to the public.
Therefore, if audio surveillance is being used by the seller in their home, it is advisable to follow state law and to give proper notice that such surveillance is present. A one-party rule applies when you are recording your conversation without the consent of the other person, however, not when you are not present and not participating in the conversation. If a seller wants to record a conversation between a prospective buyer and their real estate broker, this would be inappropriate and not allowed since the seller is not a party to that communication and the parties have not provided their consent. This would also apply to non-recording audio devices such as a walkie-talkie or monitor to listen in on private communications.
A best practice for a listing broker would be to discuss with your seller not to have audio recordings enabled during a showing unless proper notice is provided to the prospective buyers and their real estate broker.
A best practice for a buyer’s broker would be to just assume that there may be an audio recording system on the premises and to advise their clients not to say anything that one would not want the listing broker or seller to hear. Have your private conversations at a time and place that you can have privacy with your client.
In Colorado, privacy laws prohibit anyone from visually recording another without consent in situations where the person has a reasonable expectation of privacy. Therefore, would the person being video recorded have a reasonable expectation of privacy in the location of the home where the recording is taking place? This would especially be true in the situation where a buyer is using the bathroom.
A listing broker should ask and find out if video surveillance devices are located in the home, and a best practice would be to share this information with any buyer’s brokers or prospective buyers so as to avoid any possible claims that illegal video recordings were made.
A posting of a prominent notice or additional signs on the property that alerts any visitors to the home that they may be video recorded would be advisable, as well as disclosing this in the MLS comment field.
A buyer’s broker would be well advised to let their buyer clients know that these video security devices are on the property and it would be best to advise them in writing. This would help if one of those clients made a subsequent claim that they did not know there were any video recording devices.
Another best practice would be to just assume that there may be video recording systems in the home, even if there is no signage, and to advise your clients not to do anything that one would not want the listing broker or seller to see.
It is always a good idea to discuss these surveillance practices and concerns with your employing broker and legal counsel.
Hearing prospective buyers bad-mouthing your house through a nanny cam can be devastating for clients, especially for those who take great pride in the home they are selling. Sellers may hear things like "The home wasn't kept up; it was in a bad location; the kids' rooms were badly decorated." If you're selling your home, save yourself from the hurt feelings and don't record the showings.
Remember, Colorado is a one-party consent state, a homeowner utilizing audio recording must be obtained before recording sound. When it comes to video surveillance Colorado privacy laws prohibit anyone from video recording another without consent. Be sure to disclose this on the MLS comment field, always tell the buying agent before showings, and post prominent signs at the home that visitors may be video recorded.