FOR LESS THAN $100 ONLINE, OR IN SUCH STORES AS WALMART, HOMEowners can buy security cameras with audio capability that can track the actions and conversations of visitors.
For a little more — less than $500, for example — owners can get much more sophisticated systems, often placed out of sight, that won’t miss any corners in their residential or commercial properties and can pick up conversations even spoken at little more than a whisper.
While that may be good for security, it can spell trouble in the real estate business if Florida privacy laws collide with homebuyers who don’t realize they’re being recorded while speaking candidly during a property tour.
So what happens when a security-minded property owner decides to list a property for sale, opening a home or commercial site to potential buyers and Realtors who come to inspect? Can he record conversations, and use the information to strategize or negotiate?
Since about 2012 and with advances in technology that problem for shoppers has become more prominent, including in Florida where the state has a “two-way consent law,” as they call it, prohibiting most recordings unless both or any parties consent to be recorded.
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The law does not apply to some private settings, such as banks or casinos, says Steve Kramer, an Orlando-based attorney and head of Kramer Law. But it applies elsewhere.
News reporters, for example, may record no one without first asking and gaining consent.
“If you call your ex-girlfriend and you record that conversation (without her knowing), you may have just broken the law,” Mr. Kramer writes in an online discussion. “You may have committed a felony. And it’s a third-degree felony where you can face five years in prison. The other problem with recording somebody without their knowledge is that you can face civil penalties. You can actually be sued for damages. You can face punitive damages. You could have to pay attorney’s fees and costs. There are all kinds of consequences to this.”
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Florida has a “two-way consent law,” meaning both parties must agree to a conversation being recorded, with some exceptions. So a home seller should not record potential buyers. COURTESY PHOTO
If they find out.
“The challenge is, we never know if it is a problem,” says Dawn Malloy, who works with her husband and partner, Dan Malloy, for Premier Brokers International in northern Palm Beach County. “So Dan and I prep our clients not to speak, basically, while we’re in a house. Sometimes people forget when they get excited about a property, and it’s only within the last few years this has come to our attention, and we’ve noticed more and more cameras going in. So the warnings protect our clients, and it’s part of the education process.”
Businesses and trade associations estimate variously between 13 and 17 percent of homeowners have security cameras installed in homes, and the figure is rapidly increasing.
“You don’t always know where those devices are. It’s surveillance, it’s called that for a reason,” points out Pamella Seay (pronounced “Sea”), a lawyer and professor at Florida Gulf Coast University.
“So let’s say I’m selling my home, I have cameras installed, and I want to hear what they say about my house. No. They are having what they believe is a private conversation. They have that right.”
Real estate boards, including the state licensing board and agents themselves, now advise caution in carrying on any substantive conversation about price points, or in expressing any strong opinions about a prospective property while on the property. And both continuing education instruction and printed warnings real estate agents see every day are customary, they say.
A Realtor in Fort Myers who also holds a degree in criminal justice from Florida Gulf Coast University and works in a civilian capacity at the Lee County Sheriff’s Office, says the Lee County Association of REALTORS reminds all its members to be careful by printing a warning at the bottom of every MLS sheet — MLS is an acronym for Multiple Listing Service of for-sale homes, a tool used by area agents throughout Florida who regularly share and update their listings for the benefit of all.