Questions 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. (See §18-9-304 and 305, C.R.S.)
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 a 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 in 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. (See §18-7-801, C.R.S.) 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.