As technology evolves, it becomes easier to use, prices tend to drop, affordability and adoption increase. Home surveillance technology is no exception to this rule and it’s not just for early adopters anymore. Home surveillance is being used by homeowners at an increasing rate at all income levels. We have doorbell cameras, nanny cams, Wi-Fi cameras, baby monitors that watch and record us inside and outside our homes. These devices are creating new concerns about privacy and liability when used at the time of buying and selling a home.  The seller, buyer and real estate professionals should take certain precautions to protect themselves.

California is a “two-party” consent state

Each state has different laws about video and audio recordings. California is a “two-party consent” state, meaning all parties must grant permission in order to make a recording legal. In addition, audio recording and a video recording are two very different things with different rules. California makes it a crime to record or eavesdrop on any confidential communication without the consent of all parties to the conversation. A “confidential communication” is a conversation in which a person would expect to have a high degree of privacy and that no one is listening in or overhearing their conversation.  In California this applies to the use of hidden video cameras to record conversations as well.

Home video camera recordings that can include the capture of audio, video and still photos, are subject to “reasonable expectation of privacy” guidelines under privacy law, and that can make using these devices a little tricky.

Public vs. Private expectations of privacy

Your expectation of privacy is low when you are out in public, at a park, in a bar or even in your own front yard. However, once you, or your guests enter your home, there’s an increased expectation of what amount of privacy is “reasonable”. Even within the home, there are different expectations of privacy. We would certainly expect more privacy in a bathroom or a bedroom than in the living room or kitchen.

Home surveillance when buying or selling a home

If you are planning to sell your home and use or record audio with your home surveillance equipment, take some precautions. When you open up your house to potential buyers and real estate agents, there are federal and state wiretapping laws that may limit you. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.

Can I record video inside my own home?

As a homeowner, you are generally legally allowed to place cameras in common areas inside your own home and record any activities that go on inside your home. However, as mentioned above, you are generally prohibited from placing cameras in locations inside your home in which there is an expectation of privacy, such as a bedroom or bathroom. Certain surveillance could make you liable for invasion of privacy, a civil claim regarding an intrusion on a person’s reasonable expectation to be left alone.

Can I record audio inside my own home?

This is where is gets tricky again. As stated above, California law prohibits intentionally recording a private conversation without the consent of all parties involved. Nanny cams that are video-only recordings of the inside of your home (in public areas) are normally permitted, but video cameras that record audio (included with many Wi-Fi cameras) now puts those devices under the governance of federal wiretapping laws where written permission is required.

I just want to use my home surveillance for security, what’s the big deal?

Your original intent may be to monitor your house for intruders, however, today’s sophisticated technology allows surveillance to stay on 24/7, regardless of who is in your house. And when you are selling your house, that can be anyone from your family, guests, real estate agents, potential buyers, contractors, stagers, movers and others that have “permission” to be in your house. All of these people will be recorded. If those recordings include audio, and you’re in a “two-party consent” state like California, you should be cautious and get consent from all parties or risk breaking wiretapping laws.

Real estate professionals and buyers are likely to discuss confidential information when touring homes. Without knowledge they are being recorded, they could say things that the seller could use against them when trying to negotiate a fair deal.

Imagine this scenario, a buyer and her agent are in the kitchen discussing the beautiful remodel and how it is far and above better than all the other homes they have looked at. They really want this house and would be willing to pay over asking price for it, but they want to write the contract at asking price to see if the seller will accept that offer first. If the seller hears that, the buyers are at a disadvantage. They assumed their conversation was confidential and would never have discussed this in front of the seller or listing agent. They could potentially lose tens of thousands of dollars.

What constitutes consent when recording video and audio in the home?

In order for audio recording to be legal, all parties must be told they are being recorded.  As this technology evolves, there are a few actions that sellers and their real estate professional can take during the listing period to ensure compliance of the law. It is important to let anyone visiting the property know there are surveillance devices on the property by:

• Posting notices on the property alerting all visitors that they may be recorded during the visit
• Obtaining written consent from all visitors when audio monitoring is in use
• Adding a note in the MLS that this property has audio and video home surveillance
• Including the existence of surveillance devices in the disclosures filled out by both the homeowner and the real estate agent

Do buyers and real estate agents have a reasonable expectation of privacy when touring homes?

It is wise for agents and buyers to use caution when touring homes during the buying process. Even with laws in place, you may not be aware of audio and video recordings in homes. My advice, walk through the house, limit feedback (both verbal and body language) until outside the home and away from view of cameras and recording devices (preferably in the car or back at the office).

Buyer’s agents should make sure to make their clients aware of recording devices that have been disclosed or known to them.  They should consider making this disclosure to potential buyers in writing, such as in an email. Even though this written notification by the buyer’s agent is not legally required, since the buyer’s agent is not the one making the recording, it would help protect all parties.

Remember that when touring homes, you are only a guest in someone else’s home until the transaction closes. Act as if the seller is right there in the home with you, because they just might be watching and listening.

Disclaimer

Using surveillance systems – particularly audio recordings without consent – raise legal and ethical questions. The information available in this blog is for informational purposes only and does not constitute legal advice. You should contact your attorney to obtain specific legal advice.