The entire surveillance issue incorporates issues arising from several laws already on the books that were not specifically drafted to address modern home security devices but arguably might be applied with criminal/lawsuit consequences for the seller, licensee, and brokerage (e.g., wiretapping, peeping Tom, eavesdropping, other).
There is a risk for real estate licensees to communicate legal issues to a seller on surveillance or any legal issue. Therefore, real estate licensees could always state the following to any legal question from a consumer:
"That sounds like a legal question. I’m a REALTOR®. I’m not a lawyer. My REALTOR® ethics require that I recommend that you get that information from your law firm. If you do not have a law firm, the SC Bar Association’s lawyer referral service can be called at 800-868-2284."
SCR’s recommendation for the licensees to recommend that the sellers obtain legal counsel is to protect the seller and the brokerage and the licensee both now and in the future as home security system cases arise across the USA.
Also, the language in the SCR forms is designed to protect the listing brokerage from those sellers who conceal from the listing agent/brokerage that the sellers are operating audio and/or video surveillance on their property. These microphones and cameras can be so small that they are virtually undetectable/noticeable.
Buyer reps could advise buyers to (1) behave in listings and (2) only communicate with the buyer rep on-site via texting or notepads. SCR has received reports of buyer rep and buyer conversations on-site during showings which was audio surveilled and upset the sellers who then created major PR problems for the brokerage on social media and in the market.
It is a felony crime in SC to practice law without a license (UPL). Real estate licensees communicating legal issues are at risk of UPL.
Article 13 of the NAR Code of Ethics requires REALTORS® to recommend parties obtain legal counsel when it is in their best interests.
If licensees want a script from SCR for licensees:
"The South Carolina Association of REALTORS® recommends that sellers comply with all state and federal laws which may apply to surveillance now and in the future. The National Association of REALTORS® code of ethics requires REALTORS® to recommend that parties obtain legal counsel when their interests require it. Audio and video surveillance is uncharted legal territory for sellers without guidance from precedent case law in SC as of 2019. So there are legal risks that exist now and other legal risks may develop in the future that are not obvious at this time. I recommend that you obtain legal counsel asap for all your audio and video surveillance questions."
If the risks of audio surveillance outweigh the benefits, consider only using video surveillance. Conspicuous disclosure of surveillance provides a potential defense, but not a guaranteed successful defense for all potential issues at this time.
Never put cameras in areas where reasonable people might reasonably assert an expectation of privacy (e.g., bathrooms).
Posted by: Byron King on 1/9/20 (This information is only accurate as of 1/9/20. You must contact SCR for updates and changes to this information after 1/9/20 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)