Legally Speaking: Video and audio home surveillance

    By Lorie Garland, Ohio REALTORS Assistant Vice President of Legal Services

    Q: During a listing appointment the seller disclosed to my agent that there are video and audio surveillance equipment on his property. The seller stated his intent to record showings, because he wants to hear what buyers and agents are saying about his property. Is it legal for the seller to do this? Does the listing agent need to disclose to buyer agents that the showings are being recorded?

    A: Ohio law addresses both audio and video recordings. Under Ohio law a seller is permitted to use surveillance equipment to video record on his property. The equipment used is commonly referred to as a “nanny cam.” There are, however, limitations on that right to record. A seller should not record in locations where there is an expectation of privacy, for example a bathroom.

    Audio recordings, though, have stricter requirements. Under Ohio law, in order to legally make an audio recording, at least one person being recorded must consent to being recorded. Therefore, for a seller to use surveillance equipment to audio record conversations during a showing of their property, one of the individuals at the showing would have to consent to the recording. For most showings this would be either the buyer’s agent or the buyer. The fact that the seller knows about the audio recording would not be sufficient since the seller is not typically present during showings, and therefore is not a party to the conversation being recorded.

    Violations of the above provisions are a 4th degree felony under Ohio law.

    There are two ways to approach listing a property with video and audio surveillance equipment present. The first approach is to request that the seller turn off their surveillance equipment during showings or anytime the property is being accessed where the conversation of others will take place (i.e. an inspection, appraisal). This requirement could be limited to audio recordings or apply to all surveillance equipment and could be included as a term of the listing agreement.

    The other approach is to disclose the use of surveillance equipment and obtain consent to any audio recording. Notification of surveillance equipment could be made through the MLS or any other method used to communicate property access information. Also, a surveillance equipment notice should be posted at the property. Consent to an audio recording would need to be obtained prior to a showing or granting access to others pursuant to your duties under the listing agreement. Consent to audio recordings should be obtained in writing. For a showing, written consent would be required from the buyer’s agent or the buyer. If the buyer’s agent is providing the consent it should only be given with the knowledge and written authorization of the buyer.

    The bottom line is that a brokerage should adopt a policy on listing property with surveillance equipment and communicate that policy to all licensees. If a property has surveillance equipment, the seller should be made aware of Ohio law in this area and the existence of any surveillance equipment should be disclosed to others and proper consent to audio recordings obtained. Buyer agents should caution their clients regarding property surveillance equipment and should never do or say anything in a property that they would not want the seller to know.

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