Audio and Video Rundown for Realtors®

What should you advise your clients about making a video recording of a home listed for sale or rent?

Q.    As my client and I enter a listing, he pulls out his phone and indicates that he wants to record the property as he tours it. His wife is abroad and would like him to send her a video of the house.

A.    Even though the MLS and online marketing platforms provide extensive information about listings, some buyers still want to record their viewing of the property. So what is appropriate? May the buyer record and show the recording to his wife? Live stream the showing? Take pictures to help him remember the property? These issues are not addressed in the buyer brokerage agreement. Furthermore, no Virginia law addresses these questions. We recommend that as a buyer agent, you always ask permission from the listing agent before recording or taking pictures of the property’s interior. Conversely, listing agents should ask their sellers if they would permit recording, live streaming or taking of pictures of their home’s interior.

While many sellers might agree to the recording of their property, some may have privacy concerns, or have valuable items which they do not want photographed or recorded. If the seller wishes to prohibit recording, this should be communicated to agents showing the property. In addition, sellers should be made aware that if they have concerns about privacy or security, they should remove such items from the home. For example, if the seller has a valuable painting, then the listing agent should suggest that the painting be removed prior to listing it. The same advice applies to personal photographs.

Asking for permission is always the best bet, and will ensure that you and your buyer client are not the target of a lawsuit for trespass or invasion of privacy.

Q.    I plan to take a listing where the sellers have indicated that they have a security system which records both audio and video. Should I be concerned?

A.    Let’s begin by reviewing Virginia law covering the recording of conversations. Virginia Code § 19.2-62 states that it is a Class 6 felony to intentionally (1)intercept oral communications; (2) use a device to intercept oral communications; (3) disclose the content of an intercepted oral communication; or (4) use the intercepted oral communication. The only exception to this is if one party to the oral communication has agreed to the intercepted communication. The statute’s definition of intercept is broad enough to encompass recording and live streaming.

In Virginia, in order to record or live stream a conversation between two people, one of the parties must have consented to the recording. How does this play out in a home listed for sale?
A seller’s security system that records only video should not be in violation, so long as it does not record in places where buyers and agents could have an expectation of privacy, such as a bathroom. Some sellers have opted to disclose the fact that the property is monitored by placing signs such as “smile you are on camera” or “premises monitored.” While this is not required, it is a good risk management practice.

If the security system, nanny cam, or other device is recording oral communications, you should advise sellers that such intercept/recording may violate Virginia law. For the recording to be legal, either the buyer agent or the buyer touring the property must consent in writing to the intercept or recording.
To assist listing brokers with this issue, NVAR listing agreements now contain a provision that specifically explains the law to the sellers, and states that the sellers agree to hold the broker harmless for any such recording of oral communications:

“Seller ? has OR ? does not have a recording system in Property. In the event Seller has a recording system in Property which records audio, Seller understands that recording of audio may result in violation of state and/or federal wiretapping laws. Therefore, Seller hereby releases and holds harmless Broker, Broker’s designated agents, sub-agents, sales associates and employees from any liability which may result from the recording of audio in Property.”

Due to the proliferation of these security systems, buyers and their agents should always behave as if they were being recorded while in the seller’s property.