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Monday, May 7, 2018  
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Smartphone with home security app
Orlando REALTOR® | MayJune 2018

Tech meets legal meets aggravation when listings have surveillance equipment able to record video and audio during showings

By Andrew Fisher, J.D., MBA

What if your sellers learned that the blue glass backsplash in the kitchen they installed after watching their favorite home improvement show five years ago is considered dated; or the wonderful shag carpeting they so enjoyed with the kids is laughable; or that their pets are stinky? And what if they learned that things like this are turning off potential buyers?

In many ways it would be great for a seller to know what potential buyers are thinking and saying while viewing their home during a real estate showing or open house. Knowing that buyers consistently comment on certain negative aspects of the home can provide a clear roadmap of improvements and lead to a quicker sale.  Watching and hearing a buyer experience the home, commenting on how much they love this and that or how perfect the space will be for the family, could also enhance the seller’s ability to negotiate a better deal.

But, wait. Is it legal for the seller to surveil potential buyers in their home? Is there a difference legally between audio and video surveillance? What can sellers do with such recordings?

Surveillance cameras, nanny cams, and other recording devices are widely used in residential homes and are generally legal to install. However, when the home is for sale (or rent) and potential buyers (or tenants) are viewing the home they likely have some reasonable expectation of privacy that they are not being watched or heard.

Regarding the audio recording of the potential buyers, Florida has what is known as a two-party consent law. This means that the interception and disclosure of wire, oral, or electronic communications are prohibited, but there is a clear exception when all of the parties to the communication have given prior consent to such interception. 934.03(2)(d), Florida Statutes

Video-only surveillance is generally permissible in the main areas of the home, provided that there is a written notice conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security for the premises, or the video surveillance device is installed in such a manner that the presence of the device is clearly and immediately obvious. 810.145(5)(b) and (c), Florida Statutes

Please note that video surveillance is definitely not permitted where a person definitely has a reasonable expectation of privacy, such as in the bathroom. 810.145(1)(c), Florida Statutes

Violating video and audio surveillance laws can bring criminal penalties, and withholding showing information in order to assist a seller is not worth time in jail.

So what do you need to know as a listing agent?  First, ask the seller if there are any surveillance devices in the home. You may not notice the camera in the stuffed giraffe in the play room or the odd mantel decor piece. If there are surveillance devices, make sure the audio is off, because likely there is no two-party consent as the buyers and their agents are likely viewing the property alone or if accompanied, without providing consent to an audio recording.

Next, if there are video surveillance devices, make sure all devices are clearly visible and obvious to anyone, and if not, provide conspicuous postings that there is video surveillance in the house. You should also include this disclosure on the sign-in sheet for open houses and showings, and even add it to the showing instructions in the MLS listing.


Andrew Fisher, J.D., MBA, Fisher Law, PA, is a Florida Bar Board Certified Real Estate Attorney and a frequent ORRA instructor. He can be reached at afisher@fisherlawpa.com.


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