Who is Watching Me?
LOUISIANA REALTORS • May 14, 2018
This article is provided for informational purposes only. Please contact your broker or legal counsel for advice regarding specific circumstances or incidents.
By: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Patty McMurray and Natalie Maples
Many homes and buildings are now equipped with video and audio surveillance. Property owners may have video and audio cameras at their front entrances. They may also have security cameras inside the building or home, or on the perimeter of the property. For example, they may have a doorbell, a security system, a “nanny cam” or baby monitor that records video or audio, or, in some cases, all of the above.
Generally, a property owner has the right to monitor what happens within the four walls of his or her property. A prominently displayed surveillance system and/or conspicuous signs alerting visitors that a system is in use can deter would-be criminals from taking an owner’s personal belongings. However, in the context of selling a home, they can also provide negotiating advantages to sellers: these surveillance devices may allow sellers to intercept conversations between prospective buyers and the buyer’s agent.
What obligation, if any, does a property owner have to notify their REALTOR® of the recording devices? What obligation, if any, does a REALTOR® have to notify potential buyers that video or audio equipment may be recording them while they are viewing a listing?
STATE AND FEDERAL LAW
Both federal and state laws apply to audio and video surveillance. Louisiana is a “one party consent” state. This means that a person may intercept communications in two instances: 1) if the person recording the communication is a party to the communication being intercepted, or 2) if the person doing the recording is not a party to the communication, one of the parties to the communication has given prior consent to the interception of the communication.[1] However, the recording is not permitted by Louisiana law if the audio or video recording is being done for the purpose of committing a crime or a tortious act.[2]
Video surveillance without an audio recording has a different standard than recordings with both audio and video. The federal standard for evaluating video-only surveillance is whether an individual would have a reasonable expectation of privacy in the location where the recording is taking place. Although a homeowner enjoys a “zone of privacy” in their own homes, a prospective buyer generally does not have an expectation of privacy in someone else’s home. There are limits to this, however, as a potential buyer would not expect to be recorded while in the bathroom, where a reasonable expectation of privacy exists in any circumstance.
Louisiana law does not expressly prohibit the video recording or recording the image of someone unless that video or image is recorded without consent and the video is to be used for a lewd or lascivious purpose.[3] Accordingly, a videotape without audio is generally permissible under Louisiana law without providing advance notice or obtaining the consent of the parties.
There are no Louisiana or Federal cases on point wherein an unsuspecting homebuyer's conversation has been recorded and used in negotiations. There have been some cases where conversations of buyers and/or their agents are intercepted through “pocket dialing”[4] but these cases are distinct from the issue of a property owner’s right to maintain video or audio recording on his or her property. However, out of an abundance of caution, and to avoid a potential claim that an illegal or unethical recording was made, or a claim that ethical obligations were violated intercepting conversations of buyers, homeowners may want to disclose the presence of video surveillance devices on the property to potential buyers prior to a showing of the property.
LISTING BROKER
REALTORS® making audio recordings should generally be sure to obtain the permissions required under Louisiana state law. Listing brokers may want to inquire whether surveillance devices are present on the listed property and whether the surveillance devices record audio, video, or both.[5] REALTORS® may wish to include information such as the following in a listing agreement:
My property (check one) has does not have a video or audio surveillance device/system.
My device/system (check one) does does not capture audio.
Buyer’s agents may want to include the following in an exclusive representation agreement:
“I understand that I may be recorded during the time I am in the Seller’s property and consent to such recording.”
Once the REALTOR® knows that there are surveillance devices present on the property, if the surveillance devices record audio, the REALTOR® generally should disclose this knowledge with visitors to the property. This disclosure could be accomplished by posting notices on the property alerting all visitors to the property that they may be recorded during the visit or distributing a notice at the opens houses such as the one attached. There is no precise language required by law; however, here are a few examples of notices of surveillance devices on a property:
- Notice: This property is being monitored by surveillance equipment.
- Smile, and please talk clearly; you are being recorded.
- Welcome to my home. Recording equipment on the premises.
MLS DISCLOSURE
Another way to disclose the presence of surveillance devices would be to disclose such information in the MLS comment fields. Some MLS rules require a listing broker to disclose the presence of recording devices on a property.
BUYER'S AGENTS
Once the buyer’s agent is aware of recording devices present on the property, the buyer’s agent generally should inform their clients of the presence of recording devices. Buyer’s agents may consider making this disclosure to their clients in writing, such as in the attached notice. Although the buyer’s agent is generally not legally required to make the disclosure, as the buyer’s representative is not the one making the recording, such disclosure may help protect the agent from an allegation of an illegal or unethical recording by a client who later claimed to be unaware of a recording device.
As availability and use of technology of home audio and video systems increases, the laws around their use has struggled to keep pace. Disclosure of devices on the property is a good first step in making sure that information intended as private is not shared.
AUDIO-VIDEO SURVEILLANCE DISCLOSURE
Residential or commercial property may have surveillance devices installed which may have audio-video recording technology. Such surveillance devices include security systems, video doorbells, “nanny cams” and other technology, which may be recording audio and/or video during a viewing of the property. These devices may capture conversations. Additionally, these devices may capture video of the inspection of the property.
This notice is to allow the prospective buyers and other parties who are visiting the property to be aware that their conversations and actions while on the property may not be private. By signing below, you are acknowledging that you are aware that your conversations and movements may be recorded during the time you are present at the property.
[1] La. R.S. 15 § 1303(c)(3)
[2] A tort is a legal wrong committed upon the person or property independent of contract. It may be either (1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which special damage accrues to the individual; (3) the violation of some private obligation by which like damage accrues to the individual. In the former case, no special damage is necessary to entitle the party to recover. In the two latter cases, such damage is necessary.
[3] La. R.S. 14 § 283(a)(1)
[4] Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015)
[5] Finley Maxson, “Window to the Law: Video and Audio Surveillance,” National Association of REALTORS® (available online at https://www.nar.realtor/videos/window-to-the-law/window-to-the-law-video-and-audio-surveillance-issues).
This week at the Capitol, Louisiana REALTORS® saw meaningful movement on several issues that directly impact the real estate industry. Most notably, HB 468 by Representative Troy Hebert, a key part of our legislative agenda, passed the House unanimously, 96–0, and now heads to the Senate. The bill creates a clear framework for regulating residential real estate wholesaling, strengthens disclosure requirements and gives the Louisiana Real Estate Commission enforcement authority, including penalties for violations. That vote margin speaks for itself and reflects strong bipartisan support for greater transparency and accountability in this market segment. We are also closely engaged on legislation tied to blight, redevelopment and property rights. HB 217 by Representative Chance Henry, which authorizes an optional property tax exemption for blighted or derelict properties that have been rehabilitated, and ties that exemption to local redevelopment plans, passed the House floor by an 84–12 vote. It is now moving through the Senate process. Louisiana REALTORS® supports HB 217 because it creates another tool to encourage redevelopment, return distressed property to productive use and strengthen communities when implemented responsibly. Louisiana REALTORS® also support Representative John Wyble’s HB 284 , which would authorize certain parishes and municipalities to address blighted property through a declaration-of-taking process in limited jurisdictions. HB 284 is currently subject to a call on House final passage. While any proposal involving expropriation deserves careful attention, we support the goal of giving communities practical tools to deal with truly blighted and abandoned property that drags down surrounding neighborhoods, depresses property values and slows local recovery. Insurance remains one of the biggest issues of the session and continues to affect housing affordability and market stability across Louisiana. Lawmakers are working on proposals to reduce premiums, increase competition and improve the overall insurance climate. The Fortified Roof Program continues to generate significant discussion and, candidly, a fair amount of noise, but Louisiana REALTORS® and our coalition partners are actively monitoring all avenues to ensure the final result is practical and beneficial for homeowners, and the broader real estate market. These conversations remain closely tied to tort reform, which continues to be a major part of the effort to address insurance costs and availability. We are also monitoring HB 673 by Representative Phelps , which would authorize the state fire marshal to require owners or lessees of abandoned or blighted structures to install and maintain exterior security cameras and retain footage for at least 30 days. Louisiana REALTORS® opposes this bill because it creates a costly new mandate on property owners without addressing the root causes of blight, and it could create additional liability and compliance burdens for property owners, property managers and others involved in distressed property. At this time, the bill remains pending in the House Commerce Committee and is slated to be heard next week. We also remain actively engaged on several other priorities within our legislative agenda including ongoing work on vacant property disclosure and efforts to provide greater clarity on appraiser liability related to carbon monoxide detector requirements. In particular, we are working closely with the Louisiana Real Estate Commission and Representative Carver to position HB 1166 in the strongest and most workable posture possible, with a clear focus on protecting Louisiana real estate agents and their clients from unnecessary liability, reducing confusion in the transaction process, and ensuring that any new disclosure requirements are practical, fair and clearly defined. Our goal is to ensure the final product supports consumer transparency without imposing undue burdens on our members and not exposing agents across Louisiana to unintended risk. As the session continues, Louisiana REALTORS® will remain focused on protecting consumers, supporting responsible redevelopment, defending private property rights and advancing sound policy that strengthens the real estate market for our members and the clients they serve. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.
This week, the Legislature remained in high gear, and several items relevant to Louisiana’s real estate market moved into focus. The biggest headline for our industry this week was HB 468 by Rep. Troy Hebert , our wholesaling/consumer-protection bill, was slated to be heard on the House floor, however was bumped due to floor congestion and out-of-order bills. It is now expected to be reset for next Tuesday. This bill remains one of the clearest “market integrity” efforts on the board with clearer rules for non-traditional transactions, stronger transparency and better consumer protections. We also continued substantive policy work behind the scenes. We are actively engaging with Rep. Carver on a vacant land disclosure bill he has authored, and we appreciate that he is welcoming our input and guidance as the language is refined. Our goal is straightforward: ensure any vacant land disclosure framework is practical, reduces confusion and avoids unintentionally shifting liability or enforcement burdens onto real estate professionals. In addition, we were pleased to deepen our relationships at the Capitol this week. We had the privilege of hosting a lunch for the Governor’s Office, enjoyed meeting Governor Landry’s team, and look forward to working with them in a constructive, solutions-oriented manner as the session continues. Finally, Rep. Hebert also filed an additional measure that aligns with our legislative agenda and speaks directly to transaction risk management: HB 1027 , which would limit liability for licensed real estate appraisers in situations involving smoke and carbon monoxide detector compliance. The current law already provides that real estate agents are not liable for a seller’s failure to comply with Louisiana’s detector requirements in one- or two-family dwellings. HB 1027 would extend that same liability protection to licensed appraisers by amending R.S. 40:1581(F). This is a clean, common-sense clarification that helps prevent appraisers from being pulled into compliance disputes that properly belong with the seller’s statutory obligations. Next week, committees are scheduled to hear multiple bills relevant to real estate, including measures involving construction and roofing standards (often tied to insurance and mitigation), property rights/expropriation, and property tax and adjudicated property issues that can influence housing supply and neighborhood reinvestment. We will stay closely engaged and will flag any bills or amendments that materially affect transactions, homeownership costs or private property rights. Please view the weekly bill tracking report provided by our lobbying team over at Harris, DeVille and Associates.
Louisiana REALTORS® is compiling a cookbook of Louisiana flavor with a REALTOR® heart in support of the REALTORS® Relief Foundation . And we have two ways for you to get involved: Join us in contributing your favorite recipe using this online form. If you want to include a picture with your recipe, send to info@larealtors.org and reference recipe title in email subject. Or share your creativity by designing the cover artwork for the cookbook. A small committee will review all entries and choose one to print on the cover. Stay tuned for more details on when you can grab your own copy of the cookbook! Cover artwork and recipes are due by April 17th.
