MEMORANDUM
FROM: Allison Tipton
RE: The Nanny Cam
Using a nanny cam to record home showings appears to be an issue that has been around since at least 2007. Its overall legality however, has not been directly dealt with. Each state has their own recording laws, and in Texas, it is legal to record video in your home but, in order to record audio there needs to be at least one party’s consent. Because Texas is a one-party consent state, consent can come from anyone, including the party recording.
The issue with the nanny cam in real estate however, turns not on being video recorded, but mainly with audio recordings. When an agent shows a house to their client, they may talk about offers or pros/cons of the home. If a seller has cameras and audio recording, they may hear those confidential conversations where a buyer mentions they’d be willing to pay X, but would like to start low at Y. Now the seller knows what the potential high bid can be, and may use that information to accept or deny offers. Or, a seller could hear a buyer stating how ugly their paint choice is, or how awful the couch in the living room looks. A seller who hears this would not be likely to deal fairly with this buyer after hearing them show such distaste in the home. Hearing these thoughts could lead a seller to ask for a higher offer or even say no to the buyer all together. Assuming however that the only two people in the home were the buyer’s agent and the buyer, one of them would need to consent to the audio recording in order for it to be legal in Texas.
Video in the home on the other hand needs no consent, which leads to its own set of problems. One major issue could be prejudice against a potential buyer. A seller could use video recordings to vet their potential buyers and decide to deny an offer based on race, gender, ethnicity, demeanor, or even how wealthy they look. They could see that a family is older and decide they would rather have younger buyers who appear more capable of keeping up with the home. While it may not be illegal to watch those in your home, it is certainly unfair to use the recording to make determinations about who can and cannot buy the home. But, the general defense to the existence of cameras is security. Seller’s want to make sure there is no foul play during a showing and that any belongings still in the house remain there while strangers are viewing their home. A valid motive, but it does not mean that the recordings will be used for solely that purpose.
While the legality of recording during a showing is semi cut and dry, the ethical side of the issue and whether or not the existence of recording devices should be disclosed is something that is not so clear. Agents have been blogging about this issue for years, many of them wondering whether its legal to record, and others wondering whether they need to let clients know. Many agents say that whether or not they know of a recording device, they advise clients to not speak about offers or their thoughts on the home until they are out of the house. This way, even if there is an audio recording device, they will not be stating anything that could be prejudicial to future dealing with the seller. Some agents say they work on a “don’t ask don’t tell” basis and avoid the issue altogether in order to avoid issues with disclosure. If they don’t know, they don’t have to tell. But, when an agent does know of a recording device, their duty to disclose is hazy. According to the NAR’s code of ethics, agents are fiduciaries to their clients. They have a duty faithfully represent to their clients’ correct values and statuses of homes and to be truthful towards them in all aspects. So, naturally, if an agent found out that a home they were going to show to a client had cameras, they would likely let them know. However, a seller’s agent does not have the same duties to the buyer as they buyer’s agent has. A seller’s agent really has no duty to disclose the existence of cameras. Sure, they have to disclose that crack in the roof and the fact that the backyard causes flooding into the house, but the fact that there are cameras in use in the home during a showing is not on that list of must-tells.
According to many agents who blogged or asked questions on the world wide web about the use of the nanny cam, cameras are becoming an issue that needs to be talked about. There are hard lines regarding the legality of video and audio recordings, but there are no lines to draw a boundary when it comes to disclosure. Agents realize that that teddy bear could have a camera in its eye, so the best practice is to discuss the home outside the home. But to tell or not to tell when you’re a seller is still a blur. As a buyer’s agent you would want to know, but there is not duty to make a buyer or their agent aware of any recording devices. The code of ethics has yet to draw a fine line on the course of action to take, and thus, it appears agents are living by the “don’t ask don’t tell” rule in order to cover themselves if push comes to shove.