There is a lot of buzz about audio and video recording when touring a home in today’s market. So many homes have interior and exterior cameras for security purposes, but when it comes to buyers touring homes – the recordings have other implications.
The big question here – aside from home security purposes is “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 Colorado Department of Regulatory Agency (DORA) states that improper use of these devices could possibly result in civil or criminal liability.
Here are some important details to consider regarding AUDIO recording:
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.
Best practices are:
- for listing brokers to discuss with Sellers to disengage the audio recordings during showings unless proper notice is given to prospective buyers and their real estate brokers
- for buyers broker to assume they may be an audio recording system on the premises and advise their clients not to say anything that one would not want the listing broker or seller to hear. Private conversations can be held at another place and time.
BOTTOM LINE is that audio recordings may give the other party information that you did not want them to have and may disclose confidential information which needs to remain confidential throughout a transaction.
Here are some important details to consider regarding VIDEO recording:
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.
Best practices are:
- for listing brokers should find out if video surveillance devices are located in the home and share this information with any buyer’s brokers or prospective buyers to avoid any possible claims that illegal video recordings were made
- that a prominent notice or sign should be posted at the property to alert any visitor that video recording may be taking place
- for buyers broker to notify buyer clients that video security devices are on the property (and it is best to do so in writing so all parties are on the same page!)
- for buyers broker to assume they may be a video recording system in the home, even if no sign is posted, and advise their clients not to do anything that one would not want the listing broker or seller to see
BOTTOM LINE is that video recordings may give the other party information that you did not want them to have and may disclose confidential information which needs to remain confidential throughout a transaction. Specifically protected classes can be revealed through video surveillance and discrimination concerns arise.
When listing your home or touring potential homes with you, we’ll be sure to outline all these details to make sure we do not have any trouble moving forward!
