While the concept of Big Brother was once confined to the realm of sci-fi and philosophical musings, surveillance has since permeated our society and into the real estate world as well.
With the immense popularity of home products like nanny cams, Nest, and Alexa, homes are undoubtedly "smart." And employing these technologies during the sale of a home can have implications for buyer and sellers. So, what does that mean for you?
Sellers- Be Aware of Your Legal Liability
With recording capabilities at one’s fingertips, an influx of strangers in one’s home, and negotiations on the line, it’s not surprising that some sellers may want to know what’s being said by prospective homebuyers.
However, whether using audio or video recording devices is actually legal varies from state to state. Colorado law requires the consent of at least one party being recorded, and sometimes both. So while one can record a phone conversation, recording the audio of a conversation of which one is not a part is another story.
The test used in Colorado for whether video surveillance is permissible is, “would the person being recorded have a reasonable expectation of privacy in the location where the recording is taking place?” Most would argue that buyers privately touring a home believe that they are able to, in fact, speak privately.
The consensus in the real estate legal community is that sellers can choose to record audio and video of home showings, but would need to disclose this to people touring their home.
Moral of the story? If you’re selling your home, share your intentions regarding recording devices with your listing agent so that he or she can inform prospective buyers through the appropriate channels, and you can mitigate your liability.
Buyers- Use Caution When Touring Properties
As a buyer, while it’s only natural to make comments about a prospective home and you’d like to believe you can have conversations in confidence, we know now that’s not always the case.
Even if sellers are supposed to disclose recording devices that are in use, that certainly doesn’t mean they will. And because the awareness surrounding these issues is spotty at best, disclosure might not even cross the minds of some sellers. As such, if you’re in the market and looking at homes, be mindful of this possibility.
Save your comments for outside the home, after your showing. This is particularly important for any negative opinions of the home or discussions about price and your motivation for moving, all of which may have a negative impact on potential negotiations. It's important to position yourself as best as possible, even if that means holding your breath about some questionable wall paper. And, if you have any questions, just ask!
