LEGAL
Andrew Fisher, J.D., MBA
What if your sellers learned that
the blue glass backsplash in
the kitchen they installed after
watching their favorite home
improvement show five years ago is considered
dated; or the wonderful shag carpeting
they so enjoyed with the kids is laughable;
or that their pets are stinky? And what if
they learned that things like this are turning
off potential buyers?
In many ways it would be great for a
seller to know what potential buyers are
thinking and saying while viewing their
home during a real estate showing or open
house. Knowing that buyers consistently
comment on certain negative aspects of
the home can provide a clear roadmap of
improvements and lead to a quicker sale.
Watching and hearing a buyer experience
the home, commenting on how much they
love this and that or how perfect the space
will be for the family, could also enhance
the seller’s ability to negotiate a better deal.
But, wait. Is it legal for the seller to surveil
potential buyers in their home? Is there
a difference legally between audio and
video surveillance? What can sellers do with
such recordings?
Surveillance cameras, nanny cams, and
other recording devices are widely used in
residential homes and are generally legal to
install. However, when the home is for sale
(or rent) and potential buyers (or tenants)
are viewing the home they likely have some
reasonable expectation of privacy that they
are not being watched or heard.
Regarding the audio recording of the potential
buyers, Florida has what is known as
a two-party consent law. This means that
the interception and disclosure of wire, oral,
or electronic communications are prohibited,
but there is a clear exception when all
of the parties to the communication have
given prior consent to such interception.
934.03(2)(d), Florida Statutes
Video-only surveillance is generally
permissible in the main areas of the home,
provided that there is a written notice
conspicuously posted on the premises
stating that a video surveillance system has
been installed for the purpose of security
for the premises, or the video surveillance
device is installed in such a manner that
the presence of the device is clearly and
immediately obvious. 810.145(5)(b) and (c),
Florida Statutes
Please note that video surveillance is
definitely not permitted where a person
definitely has a reasonable expectation of
privacy, such as in the bathroom. 810.145(1)
(c), Florida Statutes
Violating video and audio surveillance
laws can bring criminal penalties, and
withholding showing information in order
to assist a seller is not worth time in jail.
So what do you need to know as a listing
agent? First, ask the seller if there are any
surveillance devices in the home. You may
not notice the camera in the stuffed giraffe
in the play room or the odd mantel decor
piece. If there are surveillance devices,
make sure the audio is off, because likely
there is no two-party consent as the buyers
and their agents are likely viewing the
property alone or if accompanied, without
providing consent to an audio recording.
Next, if there are video surveillance
devices, make sure all devices are clearly
visible and obvious to anyone, and if not,
provide conspicuous postings that there is
video surveillance in the house. You should
also include this disclosure on the sign-in
sheet for open houses and showings, and
even add it to the showing instructions in
the MLS listing.
> Andrew Fisher, J.D., MBA, Fisher Law, PA, is a Florida
Bar Board Certified Real Estate Attorney and a frequent
ORRA instructor. He can be reached at afisher@
fisherlawpa.com.
Sneak Pique
Tech meets legal meets aggravation when listings have
surveillance equipment able to record video and audio during showings
/fisherlawpa.com