For less than $100 online, or in such stores as Walmart, homeowners can buy security cameras with audio capability that can track the actions and conversations of visitors.
For a little more — less than $500, for example — owners can get much more sophisticated systems, often placed out of sight, that won’t miss any corners in their residential or commercial properties and can pick up conversations even spoken at little more than a whisper.
While that may be good for security, it can spell trouble in the real estate business if Florida privacy laws collide with homebuyers who don’t realize they’re being recorded while speaking candidly during a property tour.
So what happens when a security-minded property owner decides to list a property for sale, opening a home or commercial site to potential buyers and Realtors who come to inspect? Can he record conversations, and then use the information to strategize or negotiate?
Since about 2012, and with advances in technology, that problem has become more prominent for shoppers, including in Florida where the state has a “two-way consent law,” as they call it, prohibiting most recordings unless both or any parties consent to be recorded.
The law does not apply to some private settings, such as banks or casinos, says Steve Kramer, an Orlando-based attorney and head of Kramer Law. But it applies elsewhere.
News reporters, for example, may not record anyone without first asking and gaining consent.
“If you call your ex-girlfriend and you record that conversation (without her knowing), you may have just broken the law,” Mr. Kramer writes in an online discussion. “You may have committed a felony. And it’s a third-degree felony where you can face five years in prison. The other problem with recording somebody without their knowledge is that you can face civil penalties. You can actually be sued for damages. You can face punitive damages. You could have to pay attorney’s fees and costs. There are all kinds of consequences to this.”
If they find out, that is.
“The challenge is, we never know if it is a problem,” says Dawn Malloy, who works with her husband and partner, Dan Malloy, for Premier Brokers International in northern Palm Beach County. “So Dan and I prep our clients not to speak, basically, while we’re in a house. Sometimes people forget when they get excited about a property, and it’s only within the last few years this has come to our attention, and we’ve noticed more and more cameras going in. So the warnings protect our clients, and it’s part of the education process.”
Businesses and trade associations estimate variously between 13 and 17 percent of homeowners have security cameras installed in homes, and the figure is rapidly increasing.
“You don’t always know where those devices are. It’s surveillance, it’s called that for a reason,” points out Pamella Seay (pronounced “Sea”), a lawyer and professor at Florida Gulf Coast University.
“So let’s say I’m selling my home, I have cameras installed, and I want to hear what they say about my house. No. They are having what they believe is a private conversation. They have that right.”
Real estate boards, including the state licensing board, and agents themselves now advise caution in carrying on any substantive conversation about price points, or in expressing any strong opinions about a prospective property while on the property. And both continuing education instruction and printed warnings real estate agents see every day are customary, they say.
Colby Pickering, a Keller-Williams Realtor in Fort Myers who also holds a degree in criminal justice from Florida Gulf Coast University and works in a civilian capacity at the Lee County Sheriff’s Office, says the Lee County Association of REALTORS reminds all its members to be careful by printing a warning at the bottom of every MLS sheet — MLS is an acronym for Multiple Listing Service of for-sale homes, a tool used by area agents throughout Florida who regularly share and update their listings for the benefit of all.
And Lisa Vagner, a Realtor in the Coldwell Banker Residential Real Estate office of Fort Myers, notes that the warning “is now on all the listings of the Fort Myers Association website. It says, ‘Video and/or audio surveillance with recording capability may be in use on these premises. Conversations should not be considered private.’ I make sure the customer has a copy of that, and will mention it to people as a reminder.”
But that doesn’t mean people don’t have a right to record what goes on in their homes — especially if they provide easily visible warnings.
“My parents have a Brinks system with cameras, and they have a yard sign that says, ‘Video/audio surveillance on this property,’” Mr. Pickering noted.
Jackie Robertson, a Coldwell Banker Realtor and president of the Venice Area Board of Realtors, says the state association works constantly to educate agents in Florida. “The official word is that recording requires the consent of all parties, and that includes videotaped conversations that capture sound.”
“If they have a camera and it doesn’t have voice, that doesn’t violate Florida law. However, we always recommend caution. If I’m getting ready to do a listing, we ask the seller if the camera has video or sound recording, and we ask, ‘Do you have any postings that show there is a camera or (sound) recordings?’ And we would put a notice in the MLS, the Realtors’ remarks, that there should be a camera, and if there is audio recording, we definitely note that.”
“You don’t want your buyers having to worry about it.”
Jeff Jones, president of the Naples Area Board of Realtors, and managing broker with Engel & Völkers, describes dealing with video and audio surveillance as “two separate discussions.”
Video recording without sound probably creates no real liability, he explains, “especially since the average person is videoed over 40 times a day.”
Naples area Realtors ask sellers to identify equipment they will use, and they provide a card to agents and buyers warning video equipment may be in use and not to consider conversations private.
“However,” says Mr. Jones, “when you switch to audio you have to have permission when both parties are being recorded — it should be in writing. That’s a different animal. State statute makes it wrong to record somebody without their knowledge. Many of these home cameras have both video and audio. So we try to educate people that the seller has to notify people, and as part of our listing process, it’s our obligation to ask the seller to identify equipment and if they will have it off or on.”
Lest any seek to hold a real estate company responsible for recordings that violate a buyer’s right to private conversation, some companies now have sellers sign a document shielding the company from legal blame.
“This is from an addendum my company has sellers sign,” says Ms. Robertson in Venice:
“Audio/video recording devices: Florida law restricts and/or prohibits the use of audio and/or video recording devices without notice and/or consent of the parties being recorded, viewed or listened to. IF any such devices are in use at the Property at any time during the listing period, you will notify us in writing and consult with an attorney regarding your legal obligations to provide notice and/or obtain consent from any visitors. We may disclose the existence of such devices in the MLS but not all visitors will have access to the MLS and therefore it is not intended to satisfy any legal obligations you may have. You agree to indemnify and hold us harmless from any claims or damages of any kind in any way relating to the use of such audio/video recording devices.” ¦