We have recently been asked about surreptitious recordings that were made of a Buyer’s visit to a property that was for sale. Apparently the Seller then used the Buyer’s comments about price and their maximum negotiating price point to obtain the maximum price for their property.
Once this was the discovered by the Buyer, they were obviously upset, not only with the Seller, but also with BOTH of the agents. And we know what happens when a Buyer is upset … a lawsuit usually follows.
There is a very obvious benefit to property owners and even agents to having site monitoring. Safety concerns and property security can be very valuable. Nannycams, webcams, closed circuit televisions, baby monitors, audio recording devices – all of these are now useful and utilized technology.
But what does the law say? When can we be recorded or monitored without our knowledge, and how can those recordings be used? In addition to a criminal statute addressing video voyeurism (not covered here), there only appears to be a few statutes that address video and audio recordings in a home or property (we also won’t deal here with law enforcement surveillance, wiretap and other capturing of telephone communications, which are the primary focus of most of the statutes).
Under the applicable Florida statutes, unless an exception is allowed, a person who uses a device to capture an oral communication, or discloses captured communications, or uses such captured communication, may be guilty of a misdemeanor or even a felony. Now the statute is full of exceptions and defined terms and cites to other statutes, so by no means is every recording going to fall within this statute. Importantly, there is also a civil remedy statute in the event an aggrieved party suffers damages.
Some of the pertinent exceptions are: a) when all parties to the communication have given prior consent to the interception of the communication; and b) oral communications where a person has no reasonable expectation of privacy (that the communication is not going to be intercepted).
What are our expectations of privacy? And are they reasonable? Well, that is going to be the crux of any argument or case, because if you are in someone else’s house, do you have a reasonable expectation that anything you say is going to be private? In this day and age, with all the technology surrounding us, it is becoming less likely, and court cases seem to be trending that way. But whether someone has an expectation of privacy is personal to that person, so an owner should not just rely on their belief that they can record in order to protect their castle. And since no Florida courts have directly addressed this issue yet, no one can be sure that their guess is correct.
Since the existence and use of such devices are not illegal, and in fact may be beneficial, here are some tips and suggestions.
- As a listing agent, ask your owner about security services that may be installed on the property. You should be made aware of what may be recorded when you are on the property.
- Consider whether you should state in the MLS remarks for your listings the existence of video or audio recording devices on the property. As a Buyer’s agent wouldn’t you want to have advance notice of the possibility that your visit to the property might be recorded? Perhaps overkill, but an affirmative statement that recording may occur for security purposes and confidential communications should not be conducted on the premises might also be advisable.
- Also perhaps overkill, but consider including a disclosure on any visitor or open house log that a Buyer or agent may sign when they visit, and perhaps indicating that the Buyer and agents consent to any recording.
- When you visit the property, look for signage that would indicate any interior or exterior video or audio surveillance equipment.
- Advise your Buyers of the possible or actual existence of the devices as well. Further advise them ahead of time that any discussion or comments should be conducted away from the property.
If you have questions or further concerns, we encourage you to consult with your qualified real estate attorney.
Berlin Patten Ebling, PLLC
Article Authored by Chris Caswell firstname.lastname@example.org
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.
3700 South Tamiami Trail, Suite 200, Sarasota, FL 34239 P (941) 954-9991 F (941) 954-9992
247 Tamiami Trail South, Suite 201, Venice, FL 34285 P (941) 955-9991 F (941) 484-9992
8130 Main Street, Suite 206, Lakewood Ranch, FL 34202 P (941) 907-9022 F (941) 907-9024