Is Your Seller Surveillance Putting You at Risk?

Let's face it...selling a home can be frustrating.  If you have sold a home, or are in the middle of selling a home you know exactly what I'm talking about.  Strangers are in your house, opening up every door and cabinet, and there's a fear of someone possibly going through your personal belongings.  Or, you may have had several showings, but no offers.  So you're wondering to yourself what's going on...why didn't they buy?  This may tempt you to want to get a 'second set of ears' or look at the buyers with your home security cameras.  Before you do, just know what is legal and what is not.

Many homeowners have security cameras and smart-home devices.  I'd say that today, there are more that do, than those that don't.  As owners, you could have installed a ultra high-tech security system, or a simple baby monitor and that can listen to conversations, and record audio and video.  There have been notable cases where sellers have listened to conversations and gained an advantage in negotiations, and they got busted... resulting in hefty fines to the owners and their agent.  So what are the rules?

The Rules in Texas

Both the Federal Electronic Communications Privacy Act (ECPA) and Section 16.02 of the Texas Penal Code prohibit audio recordings without the consent of at least one individual who is part of the conversation.  This is commonly referred to as the one-party rule and it requires at least one party to consent to recording conversations.  So know this:  "If a seller is not present and participating in the showing, he cannot record audio... even if the conversation happens inside the seller's home."  If the seller is not present and participating in the showing he cannot record it, period.  Illegal recording is a felony offense in Texas, and anyone who has been recorded in violation of the law can bring a civil suit to recover $10,000 for each occurrence, actual damages in excess of $10,000, punitive damages, attorney's fees, and court costs.  

But What About Video?

The ECPA does not prohibit video recording.  In fact, silent video-like from security cameras is generally allowed as long as it isn't in an area where an individual would have reasonable expectation of privacy, like a camera in the bathroom.  Silent video recording of the foyer, kid's rooms, exterior and garage are likely permitted.  Most professional camera installers are familiar with the law, and normally will install the video cameras without audio.

BE SMART ABOUT SURVEILLANCE 

Your agent should remind you not to have any substantial conversations in the home, just in case someone is breaking the rules.  You don't have to be paranoid, just be security smart.  Don't let the thought of audio or video keep you from enjoying your viewing.  Ask all the questions you want, but just don't talk numbers until you are well away from the home.  Always have respect for the home you are viewing, and keep your children close and well-behaved.  Don't be overly enthusiastic, jumping up and down exclaiming, "I'll do anything to have this house!"  But you can smile and enjoy the features the homeowner has worked so hard on, and is proud of.  

As a seller, you are encouraged to avoid criminal or civil liability by concentrating on feedback given with consent and leave any microphones and/or hidden cameras out of picture.  As a buyer, you are encouraged to be smart, be courteous... view the seller's home with respect and have your conversations with your agent in private.  Simple, right?  Right.

Disclaimer:  Information from this article was taken from an article by Wes Bearden, attorney and CEO of Bearden Investigataive Agency and published on the Texas Realtors website.  Due to the rapidly changing nature of the real estate market and laws, we make no representation, warranty or guarantee of the accuracy or reliability of any information provided here.  Any legal or other information found in this article should be verified before it is relied upon.