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You have hereby been served notification that the
2019 Real Estate Legal Summit will provide valuable
discussion about the latest legal topics, plus
eight hours of continuing education credit.
Under Surveillance
Disclosure is key to staying on the right side of
the law when your sellers have audio or video
recording devices on their property
By Andrew M. Fisher, Esq.
2019 Real Estate Legal Summit Presenter
“Audio/Video Recording”
So what, exactly, are REALTORS® supposed to do about
surveillance devices these days? You’ve probably seen
this question — “It is legal for a seller to surveil potential
buyers in their home during showings and open houses?”
— come up time and again over the past few years. The answer, as
any good lawyer will provide, remains that it diff ers depending on
whether the device in question is for audio recording or for video
surveillance.
So what, then, should you do from an ethical and a legal perspective,
especially taking into consideration that violating video
and audio surveillance laws can bring criminal penalties for both
the seller and potentially you?
First off , ask your seller whether any type of surveillance and/or
recording is in use. If it is, then disclose it and get consent. You can
THURSDAY SEPTEMBER 5, 2019
do this by adding a form to your listing paperwork that protects
both you and your sellers by requesting they list all surveillance
devices in their home. If the seller lists “none,” request they update
you immediately if anything changes. If the sellers list even just one
device, then it’s time to act.
Regarding audio recordings, Florida has what is known as a
two-party consent law, meaning audio recordings of others are
prohibited unless all the parties to the communication have given
prior consent to such recording. If there is an audio recording device
at the home, either have the seller disconnect the audio recording
feature during showings and open houses, or have all potential
buyers and REALTORS® sign a disclosure and consent form (before
entering the property) that states there is audio recording at the
property and that they consent to such audio recording.
Video-only surveillance is generally permissible, provided the
presence of the camera is clearly and immediately obvious or there
is a written notice conspicuously posted on the premises stating
that there is a video surveillance system. Please note that video
surveillance is not permitted where a person has a reasonable
expectation of privacy, such as in the bathroom.
Now what? Perhaps start by including surveillance disclosures in
the MLS REALTOR® only remarks, posting a surveillance disclosure
on ShowingTime, and having all showing and open house attendees
sign a disclosure (again, before entering the property) that
details the surveillance systems and obtaining consent, if necessary.
If there are video surveillance devices, make sure all cameras
notice
• Procuring cause
• Title by tenancy
• Surveillance disclosure
• Short-term rental regulations
• Settlement support
Continued on page 13
12 Orlando REALTOR® Summer 2019