Typical Home Security/Surveillance (e.g. Cameras, Microphones) – Assume Surveillance Always
In today’s society, cameras and microphones can be so small and concealed and located in many areas, so that anyone may be surveilling or recording you and your clients at any time.
Prospective clients may be recording you while you meet with them at any location using their mobile phone or a digital device. So, ensure you are always acting professionally. Also, ensure you are complying with all laws and ethics including fair housing laws and ethics. Watch what you say and do carefully. There are fair housing testers in the market.
Some Long Island, New York real estate licensees have had their careers damaged by undercover investigative reporters and testers recording these real estate licensees making high risk fair housing statements.
BUYER AGENTS: Assume audio and visual surveillance on all listed properties. Behave at listings. Limit verbal communications at listings. Talk offsite at a secure location. Use texts and notes to communicate at listings. Warn buyers of surveillance and supervise buyers at listings. Listed property includes the interior and outdoors property.
The South Carolina Association of REALTORS® has received reports of numerous issues reported via listed property audio and video surveillance (e.g., medicine/cabinet rummaging, romantic liaisons, eating food from the refrigerator, damaging the property, unprofessional behavior inside the listing, buyer agents failing to supervise and correct buyer behavior inside the listed property, offensive comments and benign comments that upset the seller, sellers learning the buyer’s motivation to buy and top end offering price so the seller gains a negotiation advantage over the buyers using the surveillance information).
LISTING AGENTS: Discuss surveillance with listed sellers. Sellers disclose surveillance (e.g., signs at the listing, seller disclosure form). Listing agents communicate this seller disclosure (e.g., MLS private remarks, phone conversations, email communications, text messages).
There are fair housing risks with surveillance (e.g., protected class buyers fail to get the property in a multiple offer situation and sue that the seller used surveillance to discriminate illegally).
The South Carolina laws contains some seller legal risks. Peeping Tom/Voyeur laws, Eavesdropping laws, WireTap/Intercept laws – recommend that sellers obtain legal counsel on surveillance laws. Recommend that sellers do not have video surveillance in areas where potential buyers and buyer agents and others might have a reasonable expectation of privacy (e.g., restrooms, bathrooms). While a seller’s home is their castle, there are surveillance legal risks because the law generally lags behind technological advances (e.g., home security systems becoming common, surveillance devices becoming so concealable, advanced and inexpensive, internet surveillance becoming so simple to install and use). Disclosure and good judgment can help manage surveillance risks.
SCR130 Buyer Agency Agreement:
19. SURVEILLANCE: Buyer is advised that properties they enter may have both audio and video survelliance. Broker advises buyer to be aware of possible surveillance and conduct any and all communications about the potential property offsite.
SCR310 Residential Contract:
30. Acknowledgements: Due to potential criminal activity, parties are solely responsible to verify all wiring instructions with law firm/bank. Parties are also advised and understand that audio/visual surveillance may occur in the property and parties should plan accordingly and comply with all federal, state, and local laws. Parties acknowledge receiving, reading, reviewing, and understanding: this Contract, the SC Disclosure of Real Estate Brokerage Relationships form, any agency agreements, and copies of these documents. Parties acknowledge having time and opportunity to review all documents and receive legal counsel from their attorneys prior to signing Contract.
SCR230 Seller Disclosure (recommend always requiring in listings):
11. Built-in systems and fixtures (fans, irrigation, pool, security, lighting, A/V, other) …………………………. [ x ] YES
In the blank lines, seller must explain all YES answers:
"There are surveillance/security cameras throughout the property with microphones and the systems are always recording and can be monitored via the internet."
SCR220 Residential Listing Agreement signed by the listed sellers:
27. SURVEILLANCE: Seller agrees to abide by any laws and regulations regulating audio and video surveillance of the Property and persons entering the Property including agreeing not to use any surveillance in areas where persons have an expectation of privacy such as restrooms. Seller agrees that Broker [ x ] may or [ ] may not disclose potential surveillance as Broker deems necessary including signage on the Property and in advertising/marketing.
Posted by: Byron King on 10/19/21 (This information is only accurate as of 10/19/21. You must contact SCR for updates and changes to this information after 10/19/21 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org or email byron at screaltors.org)
This information is not legal advice. This information is intended only to provide general information and may not be relied upon as specific legal guidance. Legal counsel should always be consulted before acting in reliance on this information.