WRITTEN BY BOB HUNT
Imagine that you are the buyers’ agent and that you are just finishing showing them a house that, obviously, they feel is perfect for them. As you stand in the foyer talking, they begin to discuss making an offer. The three of you talk about financing and negotiation strategies. They emphasize that, although they could and would pay full price — even more! — they want to start with a lower offer. You may even agree with them, and you start talking about various alternative scenarios. Etc. Etc. All is good, right?
Now suppose that, unbeknownst to you, the seller has recorded your entire conversation and all the remarks made during your tour of the home. Both audio and visual. Not so good after all, right?
As technology evolves, and as houses get smarter and smarter, homeowners have and use expanded opportunities to know about whatever is going on in their homes when they are not physically present. Buyers, agents, and others who may have legitimate access to a house need to be aware of this and to act accordingly. Sellers, on the other hand, would love to have access to these kinds of conversations, but they need to be careful about liabilities.
Paragraph 10 of the CAR (California Association of REALTORS®) standard residential listing agreement says this: “Persons visiting the Property may not be aware that they could be recorded by audio or visual devices installed by Seller (such as ‘nanny cams’ and hidden security cameras). Seller is advised to post notice disclosing the existence of security devices.”
This language was added to the standard form agreement June of 2017. It appears in a paragraph that previously addressed security concerns. It is a safe bet that a significant number of agents are not aware of, and therefore don’t point out, the advice about posting and disclosing the presence of security cameras and/or recording devices.
To understand why the seller is advised to provide notice of recording devices, we need to be aware of California’s privacy law at Penal Code §632. It says, in part, “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop or record the confidential communication …shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment .”
Although the U.S. Constitution does not mention privacy (and isn’t that a surprise to many?) the California Constitution (Article I, Section 1) says that all people have an inalienable right to, among other things, “…pursuing and obtaining safety, happiness, and privacy.” The penal code reflects that. It says that Californians can’t expect confidentiality in public gatherings, or proceedings open to the public, or in circumstances where they can “reasonably expect” to be overheard or recorded, but otherwise they have an expectation of privacy and the ability to communicate confidentially.
The question then arises: What sort of notice should the seller give? Where and how should it be placed?
These matters were recently discussed in a webinar conducted by CAR legal staff. Of course, there is no one-size-fits-all answer. It was pretty clear that simply putting the notice in the MLS was not sufficient. Though it would be good as one step. Common sense — if it can be found — will probably provide the best answer from circumstance to circumstance. Certainly, the notice(s) should be prominently and clearly placed where a visitor to the property would be likely to see them.