In the novel 1984 , George Orwell predicted that the specter of “Big Brother," with its all seeing eye, would be watching and listening to everything we say and do. Over 20 years have passed since the novel’s title date passed us by and, thankfully, it never came to fruition…or did it?
But was George Orwell really that far off base? No matter where you turn, video cameras are there. They’re at gas station, banks, restaurants, grocery stores and intersections. Each person is a walking paparazzi, their phones capturing every moment the owner finds interesting.
In the real estate world, audio and video recordings raise an interesting issue. Does a homeowner have a right to record audio or video of an open house or a scheduled appointment in their home? The homeowner, compelled by the thought of strangers in their home, wants to monitor their property and keep their home safe and learn as much as possible about the buyer’s thoughts and interests. But how far can they go? Can they place a secret audio recording device behind the potted plant to eavesdrop on unsuspecting buyers and agents? Can they place a video recording device in a hidden location (inside a teddy bear or clock radio?) to video record visitors? What about leaving the nanny-cam or the computer video camera on?
What’s raised are three important questions: (i) can someone record their own conversations without the consent of the other party or parties to the conversation; (ii) can someone record conversation between third parties without being a party to the conversation; and (iii) can someone take video recordings of activities taking place outside of their presence?
In New York, the law is pretty clear. The answer to question (i) is yes. It is lawful for anyone to make audio recordings of a conversation to which they are a party without the consent of the other party. So if the homeowner is there, they are permitted to record the conversation. Conversely the answer to question (ii) is no. Subject to some specific exceptions, it is a Class E Felony in New York for anyone to intentionally record a conversation or discussion to which they are not a party, without the consent of at least one party involved in the conversation. That being said, if the homeowner tells their agent, who is present at the time of the showing and the agent consents to the recording, then it would be permissible to record the audio conversations in the home. Finally, the answer to question (iii) is yes. Generally speaking, someone may record video (without the audio) of third parties in their home without the consent of those individuals.
So where does this leave the unsuspecting homebuyer? On guard, that’s where! A homebuyer could be recorded on video without their knowledge or consent as they wander through a home, so long as there is no audio accompanying it. They could also be recorded on audio if the homeowner is present or the homeowner’s agent has consented to being recorded.
And what about that nanny-cam or computer video camera that’s left on that watches and eavesdrops on everything you say and do? That’s absolutely OK, as long as it’s not recorded.
So, for all you homebuyers who are out there… be wary. You are not alone. That teddy bear with the glowing red eye is watching. And yes, that computer video camera may be moving to follow you. The walls may have ears and they’re listening to you. Think twice before you look through someone’s medicine cabinet or rummage through their personal belongings. Be careful of what you say, good or bad, because someone may be listening. Big Brother is there… and he’s watching and listening!