The risks and benefits of monitoring potential home buyers in all 50 states
March 9, 2023Rob Gabriele, Managing Editor & Home Security Expert |March 9, 2023
When selling your house, knowing what buyers are looking for is essential. But how far should you go to find out? Some people find out what prospective buyers think about their houses down to the exact wording using video or audio recording devices during tours. They use these insights to negotiate higher prices to pocket more cash.
Millions of consumers have cameras in their homes today, making it simple for many home sellers to use their existing cameras to keep tabs on potential buyers. While it may seem very easy and appealing to do this, it’s not always legal to record potential buyers.
Real estate surveillance laws can be confusing since they differ from state to state. In many states, video recordings are OK if not in private spaces such as a bedroom, bathroom, or closet. Audio recordings are typically only OK if all parties are aware and consent. If you’re a potential buyer or are selling your home, we’re here to cut through the confusion and break down the rules in each state.
Since so many people protect their homes with security cameras or baby monitors, they can use the devices they already possess. A recent study found three in 10 sellers have used cameras to monitor potential home buyers. Many sellers did so to understand what buyers liked and disliked about the home. That allowed them to implement changes to make the home more appealing. Others surveilled potential buyers to get the information they could later use in negotiations.
However, cameras can alienate potential homebuyers. The same study found 44 percent of homebuyers said they would not be willing to purchase their dream home if sellers secretly recorded them to hear their impressions about the house.
The Legality of Audio and Video Recordings
Current laws typically treat audio and video recordings differently. The regulations are looser on video. People can typically record video in their own homes, even on hidden cameras, without asking or notifying guests. However, no matter where sellers live in the United States, they cannot record video in bathrooms, bedrooms, closets, and other spaces where people reasonably expect privacy.
The bar is much higher with audio recordings. At least one party to a conversation, and sometimes, all parties, must consent to be recorded. States that require one party’s consent are one-party consent states. The other states are two-party or all-consent states.
Whether you’re selling or buying, your real estate agent will likely offer advice on what to do. For example, agents may tell sellers to turn off audio devices, so they don’t accidentally record buyers.
Many realtors have buyers sign forms confirming that they understand a seller has audio and video recording devices and that the buyers consent to the possibility of being recorded.
Before buying a home or listing your own, it’s wise to be aware of the laws in your state. You can consult a lawyer to fully understand what your rights are. The information in this guide is for educational purposes and does not constitute legal advice.
The Difference between Eavesdropping and One-Party Consent
In one-party consent states, the laws generally hold that the consent of only one party is needed to record audio without other people knowing. However, both parties must take part in the conversation for it to be above board.
Understandably, one-party consent laws can be confusing. Many homeowners figure if they have recording devices, they just need to consent, and it’s OK to record and not get permission or tell anyone. They’re not clear on the fact they need to be an actual participant in the conversation. In this situation, the people conversing are typically prospective buyers, such as a married couple. Sometimes, the real estate agent takes part, too. However, the seller isn’t typically participating in the conversation and probably isn’t even at home. They can get prior consent to record, though.
Common Ways To Obtain Prior Consent for Recording
If sellers choose to record showings, they should obtain prior consent to ethically use the information they may glean from buyers. “Unless the potential buyers are explicitly made aware that they are being filmed or recorded, it’s unethical for a seller to listen in on showings,” explained Taylor Gooley, a real estate agent at Sutter and Nugent. “If the buyers are made aware before the showing, and something is discussed that could be used in negotiations, then it’s fair game [for sellers] to use that information as they see fit.”
Sellers and real estate agents in all 50 states take several approaches to inform buyers about the possibility of being recorded and to gain their prior consent to being recorded, such as:
Having buyers sign a disclosure acknowledging the seller has video or audio and that they may record buyers. Buyers get the forms with sufficient advance notice, so they aren’t “rushed” into signing them right before a showing or open house.
Placing notices in the MLS (multiple listing service) stating that sellers could record open houses and showings.
Posting notices on the property signaling the presence of audio or video recording devices.
On the federal level, the Federal Communications Commission allows third parties not part of an audio conversation to get permission to record it via prior verbal or written consent. Third parties can also obtain consent by playing verbal cautions before a conversation begins (“We are monitoring this phone call for quality control purposes…”) or playing beep tones regularly throughout a conversation to remind participants they are under surveillance.
Real Estate Surveillance Laws by State
Here’s the rundown on what each state generally permits sellers to do in the residences they own. This is not legal advice, so consult a lawyer for clarification. For example, some states have exceptions if harassment or certain crimes occur.
Two-party or all-party consent states
In the following states, video recordings are usually allowed if cameras are not in private spaces such as closets and bathrooms. However, regarding audio recordings, the rules are stricter: all parties in the conversation must consent to recordings. Third parties can get prior consent to record conversations they are not a part of.
Here are the states that have two-party consent laws:
California
Florida
Illinois
Maryland
Massachusetts
Michigan
Montana
New Hampshire
Oregon
Pennsylvania
Washington
One-party consent states
The law on audio recordings in one-party-consent states is looser than in two-party consent states. Only one party versus all parties in the conversation must permit recording.
Remember that home sellers usually are not participants in conversations, though, and it’s easy to misunderstand the law. In one-party-consent states (and generally), recording video without sound in your home is OK as long as cameras are not in private spaces such as closets and bathrooms.
The following states have one-party consent laws for recordings:
Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut
Delaware
District of Columbia
Georgia
Hawaii
Idaho
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Minnesota
Mississippi
Missouri
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia
Wisconsin
Wyoming
A note on Vermont
Vermont is the only state lacking provisions for the recording or sharing of audio conversations. That means it defaults to federal law, rendering it a one-party consent state. Federal law says at least one party to a conversation must consent to a recording when there is an expectation of privacy.
Why Sellers Might Want to Think Twice about Recording Potential Buyers
“If you're recording potential buyers, you'll need a thick skin. People are not always going to vibe with your choice of curtains or the wallpaper in the hall bathroom,” said Lauren Reynolds, a real estate agent with Compass. “I tell buyer clients when we’re touring a house, they can ask questions but should not make comments about the house while we're there. I even ask them to wait until we’re off the property to discuss since home security cameras like Ring pick up conversations.”
Realtors and sellers accept that audio and video devices are standard in many homes today. As many as half of an agent’s homes may have a Ring device, and one in five could have fairly elaborate security systems. Sellers risk turning buyers off and losing home sales if they use audio and video devices. Here are a few reasons why this could be:
The devices make some buyers feel like sellers don’t trust them.
Buyers can feel self-conscious when they feel like they’re being watched. They may focus so much on monitoring their body language that they forget to truly pay attention to the house.
Sellers risk getting offended by things buyers say. It could stop a transaction from happening that would otherwise have occurred. People are naturally very protective of their homes. However, sellers might decide not to proceed with buyers criticizing something like the look of a family heirloom. Sellers would’ve had no idea this conversation occurred if not for audio recording devices.
Sellers risk getting sued based on Fair Housing discrimination issues. Buyers could argue that sellers discriminated against them based on gender, race, family status, or other classifications. Buyers upset they did not get the house could try to get back at sellers this way.
Real estate agents recommend a few approaches for sellers who do decide to use video recording:
Make the camera(s) discreet. You don’t need to hide it, but don’t set a large, intimidating camera in the hallway for buyers to see. Choose a device that complements its surroundings.
Do not enable audio recording on your devices. It’s probably illegal and is unlikely to provide helpful information.
Refrain from relying on the cameras as your only or first line of defense. It’s more effective for sellers to secure valuables offsite or in safes and screen buyers before they even enter the home. Realtors may have clients sign contracts to ensure they are committed and financially capable of buying the houses they view. Real estate agents also keep logbooks and electronic records indicating who visited various homes.
Conclusion
The benefits may outweigh the risks if sellers keep their audio and video devices actively recording when buyers view their homes. These devices could open sellers up to legal trouble and cause good deals to fall through. However, video recording in most rooms is generally permitted, as is audio recording with prior consent.
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March 9, 2023
