05/16/2018
When's the last time you bought a house? Is someone eavesdropping on you? Watching you? The times have changed, and more and more often, homes are equipped with audio and video recording devices. I always warn buyers of this when I begin working with them, mainly so they do not lose any negotiating power by talking dollar amounts when I am showing them a property. And only a couple of times has there been notice either at the home or in the MLS listing that there are recording devices, yet I know it is more common than that.
Is all of this legal? Here is what a recent issue of Tenneesse REALTORS "The Digest" had to say on the topic (https://tnrealtors.com):
Audio Recordings?
Q: Regarding security cameras with audio in listings, if we are the listing agent do we have to let the buyer know about this? If we are the buyer’s agent, are we required to ask the seller if they have cameras with audio?
A: Let’s look at applicable state law and recommended best practices.
In Tennessee, a person may record oral conversations where either the person is a party to the conversation or at least one of the participants has consented to the recording, per TCA §39-13-601(b)(5). A person may not photograph or record, for the purpose of sexual arousal or gratification, a person when the person has a reasonable expectation of privacy if the image would offend or embarrass an ordinary person, per TCA §39-13-605(a).
If you have a listing and the seller has recording devices in place, it is advisable to disclose this to each person looking at the house. You can disclose this in the MLS listing or in emails to buyer’s agents. Just be sure the disclosure is in written form.
Tennessee law re: audio recordings says that a person may record if they are a party to the conversation or if they have the consent of one of the participants. Under this, you would be wise to have a potential buyer sign a consent form to being recorded before entering a house with a recording device.
As a buyer’s agent, it is good practice to remind your clients this is a possibility before entering any house. If this is a concern to your client, you may want to ask each listing agent (via email) before entering a property whether or not there are recording devices. Then you will have written documentation that you asked and whether or not the agent disclosed.