Here is the typical legal hotline response to surveillance in listings (cameras and microphones).
First, this issue is not settled in statute nor case law. So, proper disclosure of surveillance (audio/visual) is a way to help manage risk and help avoid becoming the test case.
SCR posts a sign that premises are under visual/camera surveillance. SCR surveillance cameras are never located anywhere that a person has an expectation of privacy (restrooms).
SCR does not have surveillance microphones.
Here is the risk:
On one hand, the home is the owner’s castle and the owner may have the right to surveil their own property with cameras and microphones.
On the other hand, there are peeping Tom laws (cameras in bathrooms where people have an expectation of privacy) and there are eavesdropping/wiretapping laws that might be applied to microphones recording conversations that do not include the owner and recorded without permission.
There are no cases or statutes directly on point in SC, so there is a risk of becoming the test case.
To manage risks:
1. Consider disclosure of surveillance (e.g. proper signage at the property, proper disclosure on the MLS/ads). Signage/disclosure is a deterrence to bad behavior in listings.
2. Consider only using video surveillance and not using microphone surveillance (e.g. avoid wiretapping/eavesdropping issues that may or may not apply – no case law currently).
3. Buyer reps, educate potential buyers/tenants to behave in listings and do not discuss anything in listings that you do not want overhead (e.g. derogatory comments about the property that will anger the seller and make negotiations difficult, motivation to buy or top price that will give seller the advantage in negotiations). Wait until in a secure area to discuss.
4. Buyer reps and inspectors and potential buyers/tenants – behave in listings…do not do anything that can cause arrests, lawsuits, embarrassment, humiliation, vandalism, theft, assist burglary.
5. Sellers always secure prior to showings all valuables, weapons, drugs, alcohol, children, pets, identity info, pilferable items, sentimental items, personal items.
6. REALTORS® must be aware that security cameras and microphones can be small and almost invisible and sellers may not disclose surveillance even if asked, and may fib.
7. REALTORS®/inspectors/buyers/tenants must behave in listings at all times and should consider themselves under audio/video surveillance at all times while at the listing.
8. REALTORS® shall ensure the listing is always resecured without any fire/flood/burglary issues (e.g. no stove left on, lights at appropriate levels, buyers/tenants with REALTORS® at all times, faucets turned off, window/door locks secure). Buyers/tenants are known to leave doors/windows unlocked for later re-entry and burglary/misuse.
9. REALTORS® shall not misuse property for personal use (e.g. live there, vacation, rendezvous, party).
Posted by : Byron King on 4/18/18 (This information is only accurate as of 4/18/18. You must contact SCR for updates and changes to this information after 4/18/18 as laws and regulations may change over time. SCR 803-772-5206 or email info at screaltors.org)