Today home surveillance is not just for the paranoid. Most homes have some sort of video and audio device located inside or outside their property.
The purpose of this ranges from the prevention of criminal activity to checking on a pet while you are away. What does this surveillance mean for buyers and buyers agents walking through a house that is riddled with cameras, or for the seller who wants to keep an eye on their home while they still live there?
Iowa Code provides minimal answers but there are steps agents can take to make sure confidential information between them and their client is not compromised.
The first part to understanding audio and video recording of others is whether or not you need someone's consent to record them. The answer is you likely do not need consent, as Iowa is a one-party consent state. Under Iowa Code 808B.2(2)(b) is states, “to intercept a wire, oral, or electronic communication, if the person is a party to the communication or one of the parties to the communication has given prior consent to the interception” then the recording of audio and video is permissible. For example, you can record a conversation with your boss without them consenting to being recorded, because you are the one party to consent.
Even if one party has given consent does this apply to situations where someone does not even know they are a party to the recorded communication? After all when being shown a house, a buyer does not necessarily know whether they are involved in a communication with a seller who is just listening in through a home video or audio device. As it stands now, based on the language of 808B.2(2)(b), it is likely that a seller can listen in if they themselves consent to recording the communication.
In addition, Iowa Code section 808B.2(2)(d) provides a possible argument for the protection of sellers using these cameras. The section provides that the owner of real property may intercept oral communication if the interception falls under the following circumstances:
(1) The interception of the oral communication is made by a surveillance system placed in or on the real property owned or leased by the person. (2) The surveillance system is installed with the knowledge and consent of all lawful owners or lessees of the real property. (3) The surveillance system is used for the purpose of detecting or preventing criminal activity in or on the real property owned or leased by the person…”
Most recording systems in or on real property are for the prevention of criminal activity and are almost always placed by the owner. It is likely a difficult argument to make that section 808.B.2(2)(d) offers protection from sellers listening in on a buyer walk through.
The next part to this discussion is the issue of confidentiality. According to section 1-9 of the National Association of Realtors Code of Ethics and Standards of Practice, agents shall not knowingly reveal confidential information about their clients during or following the termination of their professional relationship. Under the Iowa administrative rules confidential information includes but is not limited to, the buyer “willing to pay more than the asking price” and the buyer willing to agree to “financing terms other than those offered”. These two topics often come up in conversation when touring a home, and if a seller is listening in negotiations can become skewed. A very important point here is that an agent is not violating confidentiality if the client reveals confidential information during a walkthrough and the seller overhears via camera.
Best Practice for Agents
“Reasonable efforts” is a standard often used in the legal sphere when there is an inadvertent disclosure of confidential legal information. Using that standard as guidance on confidentiality can be helpful no matter the profession.
“Reasonable efforts” in its simplest form means taking steps to ensure certain information remains confidential. In practice this would look like: telling your client over the phone or through email what topics should not be discussed outside or inside the home before arriving for a walkthrough (smart doorbells have the ability to hear audio from great distances). For a full list of these confidential topics reference193E 2.1 of the Iowa Administrative Code under the definition “Confidential information.” The client is welcome to talk about what they like and do not like about the house, but keep some things for a conversation when there is no chance of someone listening in.
On the listing agents’ side, courtesies can be extended in the form of notice. Many listing agreements, including IAR’s, now have a section included that allows for the disclosure of surveillance equipment. Creating a culture of transparency in this area will benefit agents no matter which side of the transaction they are on.
Overall, by letting your client know there is the potential of the seller listening in and putting them on notice of what may occur should help keep everyone in compliance. Even if there is an attempt to have recording devices removed or turned off for a showing there is always room for error. If a client brings up such information, a reminder of who might be listening will help keep the conversation on track.