Duane Duggan, Realtor and Author RE/MAX of Boulder

If you’re old enough, you might remember the old “Candid Camera” TV show hosted by Allen Funt, which featured hidden video cameras recording staged situations in the interest of comedy. During the 1950s and 1960s, video cameras were very large devices, making them hard to hide when tricking the unsuspecting people that we laughed at. Today, both the size and price of video and audio recording equipment is quite small. Nearly anyone can purchase high quality audio and video recording devices to place in their home, connected to their home wi-fi. 24/7 smart home video monitoring and security systems with indoor and outdoor cameras, video doorbells, motion activation, and phone app controls are becoming more popular.

As a result of the ease in setting up such a surveillance system, issues relative to the real estate marketing process arise. A seller certainly has a right to protect their property and may have a security system in their home, which could be used to record prospective buyers during home showings. From a listing agent’s point of view, it is important to ask the seller upon listing if there are any active monitoring systems in the home. If the answer is “yes”, and the seller has decided to record all showings, notification of such recording needs to be given to the showing agent and the buyer. This can be done by posting notification of the intended recording in the Multiple Listing Service (MLS) and at the front door of the home and inside the house. The prospective buyer can choose not to view the home if they feel uncomfortable. From a seller’s point of view, showings might be lost as many buyers may not want to be recorded as they view a home.

Also, it is important to note that from a legal standpoint, a buyer who loses out in a competitive bidding situation could potentially claim a camera was being used to discriminate against one of the protected classes identified in the Federal Fair Housing Act. A seller should have a discussion with their attorney and Realtor® before deciding to record audio and video of a showing.

Buyer’s agents need to inform their buyers that even if no notice has been given about a showing being recorded, assume that it is. Video and audio monitoring devices are so small today, they can be hidden anywhere. A seller having a recording of an interested buyer could give them information about how much a buyer likes the home, and maybe even what price they might offer and what their top offer might be.

As a buyer, a best practice while on a showing is to not display any emotion while viewing a home and to refrain from discussing pricing or potential offers. As it is commonly stated, “what you say can be used against you,” and in this case, it can hurt your negotiating ability. Wait until you get in the car to converse about any of those topics. Just like the seller, a buyer should consult with their attorney and Realtor about recordings during showings.

By Duane Duggan. Duane has been a Realtor for RE/MAX of Boulder since 1982. Living the life of a Realtor and being immersed in real estate led to the inception of his book, Realtor for Life. For questions, e-mail DuaneDuggan@boulderco.com, call 303.441.5611 or visit boulderco.com.