Surveillance When Selling

It’s the twenty-first century and it seems like we are being recorded constantly. Statistics on www.safety.com reveal the average American is recorded 20 times a week driving, 40 times a week at work, 24 times while shopping or running errands, and 14 times per week in their house or neighborhood and if you work in retail or are a frequent traveler, you’re filmed hundreds or thousands of times per week, just going about your daily life. Everything from doorbells, cameras on houses, cameras in houses, cell phones pointed at us at any given moment, traffic cameras, street cameras, and even a baby monitor can have video and audio these days. This type of exposure has been mainstreamed and the current generation of Americans have become accustomed to having most of their lives documented. But when is surveillance an infringement on the rights of others? Is it possible to infringe on someone else’s privacy in your own home?

Texas Realtors warns that sellers should be aware that allowing a stranger into your home for a showing is not permission to record whatever and wherever you want. Texas Realtors goes on to warn, that Texas privacy laws exist to protect individuals, and courts have found in favor of visitors when a homeowner goes too far with surveillance. So, what’s too far? Texas Realtors explains that silent videos in and around public areas of your home are not the issue as long as they are public areas. This is not allowed however in areas where an individual might expect privacy, such as a restroom. But what about audio surveillance? Conversations, statements, thoughts, etc. should all be expected to be private between a Realtor and their client.

If your property is listed for sale and you have audio recording or listening devices on site that can allow you to hear the statements being made by potential buyers, you could have an unfair advantage in the negotiation process. Imagine you’re trying to discuss a possible offer or negotiation process with your Realtor and the very person you’re negotiating with is listening to your strategy and knows your thoughts. This unfair advantage is the very thing the law exists to protect consumers from and why it’s so important to be careful with your surveillance equipment types. According to Wes Bearden an attorney and CEO of Bearden Investigative Agency with offices in Dallas, Houston, Fort Worth, and New Orleans, 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. If found guilty of illegal recordings, plaintiffs could be awarded as much as $10,000 per offense in Texas.

You may have heard of the “one-party rule” and assume that it applies to recordings of any conversation, but it does not. In Texas, you can record or eavesdrop on the audio of a conversation you are actively a party to, even if you don’t have the consent of the person you are speaking with. But you are not allowed to record a conversation you are not an active participant in. The “one-party rule” does not apply to conversations happening on your property between the parties viewing or showing your property. When a showing has occurred at your property, your Realtor will reach out to the showing agent (the buyer’s Realtor) and ask for feedback about how the prospect liked it and what their thoughts were about the property.

Ask your Realtor what their process is for obtaining this information and following up regarding showings that occur at your property when you are planning your listing. Do not take matters into your own hands and eavesdrop, the cost can far outweigh the benefit. If you are buying a home and are out viewing properties, discuss this with your Realtor ahead of time and come to an agreement to “hold the conversation.” Not everything needs to be discussed at the moment. It is best to leave the premises and chat about your likes, dislikes, and intentions at a later time.

For more information about audio and video surveillance best practices when listing your property visit www.texasrealestate.com