The Use Of Audio And Video Recording By Buyers And Sellers During Property Showings
Rapid changes in technology can lead to unintended consequences or unforeseen issues. This is especially true today when considering the proliferation of home security systems, ‘nanny cams’ and other devices that record audio and/or video on the grounds of or within a property that is For Sale on the market.
The Buyer’s Perspective
Is it okay for a potential home buyer to pull out their smart phone or other recording device and take pictures of the inside of a home that they are touring? What about capturing video or even ‘live-streaming’ images while on home tour? At this time, there is no law in Virginia that addresses or governs these practices, however it is highly recommended that the home buyer (or their agent) receive the prior approval of the home’s owner before taking additional pictures, recording video, or live-streaming images from the property to avoid potential invasion of privacy claims or concerns.
If a seller has specifically communicated that no such photography or videography should take place by any means (such as posting a sign within the home), then this instruction should be strictly followed.
The Seller’s Perspective
Home Sellers face greater potential issues under existing Virginia Law if they are recording or capturing audio and/or video of potential home buyers visiting their property. Let’s start with audio (oral communications):
According to current Virginia law, it is a Class 6 felony to intentionally:
* Intercept oral communications
* Use a device to intercept oral communications
* Disclose the content of any intercepted oral communications
* Use any intercepted oral communications
The sole exception to this rule is if one party to the oral communication has agreed in advance to having the conversation intercepted and recorded. So, in Virginia, in order to record or live-stream communications between two people, one of the parties must have consented to the recording. Sellers should know that any capture, recording, or live-streaming of a potential buyer’s audio conversation within their home may violate Virginia law.
Now, what about video (only) recording or streaming? Presently, no law exists to prohibit or govern the use of video-only taping or live viewing of buyers and/or agents that are showing a property, with the exception that such video surveillance or recording does not occur in areas where people have a reasonable expectation of privacy (i.e. inside of a bathroom).
Increasingly today home buyers and agents may see signs on or within a property that warn of possible video surveillance. As such, it is strongly advised that anyone viewing a home that is listed For Sale conduct themselves in a manner as if they were being recorded within the seller’s home and property.
At The Art of Real Estate Team, we keep a close eye on developments within our industry so that we may advise our clients accordingly. It just one part of what you can expect when we are representing you in a real estate transaction. Remember…