VA 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 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.