In our final home surveillance legal issues video series Janet Allen and Scott Rooker discuss what happens to all that leftover smart technology after the home is sold.
Have you thought about the possible legal considerations regarding the listings you may have that have audio or video devices? Here is a great article written by Wes Bearden that touches on those issues.
Selling a home can be frustrating to homeowners. They’re asked to allow strangers into their home. They may never receive feedback and are left to wonder, “Why didn’t that last buyer bite?” What do anxious sellers do? They get an extra set of ears. Many homeowners have installed security cameras and smart-home devices. These installations can be an ultra high-tech security system or a simple baby monitor, and they all can be abused. A number of notable cases have emerged where sellers listened to a potential buyer’s showing. Sometimes it’s to gain advantage in negotiations, while other times it’s simply to better stage the property. So, can a seller covertly record or monitor a buyer’s showing?
The rules in Texas
Both the Federal Electronic Communications Privacy Act (ECPA) and Section 16.02 of the Texas Penal Code prohibit audio recordings without the consent of at least one individual who is part of the conversation. The Texas rule, commonly referred to as the one-party rule, requires at least one party to consent to recording conversations. What that rule allows is any individual to covertly-and legally-record his own conversations with a broker, neighbor, or other party. Whenever you speak, it’s best to follow the old saying: Say what you mean and mean what you say. The other person in the conversation may be recording everyone.
If a seller is not present and participating in the showing, he cannot record audio … even if the conversation happens inside the seller’s home.
Why a seller cannot record audio of a showing
Texas law does not allow audio recording or audio monitoring of conversations that you are not a part of. If the seller is not present and participating in the showing, he cannot record it. Even though the conversation happens inside a seller’s home, he is prohibited from recording any conversations that he is not a part of.
But what about video?
Many homes today have security cameras installed that record video. Some have audio recording, similar to a baby monitor, and some without. The ECPA docs not prohibit video recording. In fact, silent video-like from security cameras-is generally allowed as long as it isn’t in an area where an individual would have a reasonable expectation of privacy. For instance, silent bathroom video recording is not allowed. But silent video recording of the foyer, kid’s playroom, exterior of a home, and a garage arc likely permitted.
Is your listing breaking the law?
Most professional alarm and security cam-era installers are familiar with the law. Normally, they install video cameras with-out audio and arc leery to place inside cam-eras in any location other than a foyer. However, when your seller is a do-it-yourselfer, you may want to ask questions. Have sellers tell you what the system will record. If audio is recorded, the seller may have a problem. If it is silent video, have sellers show you where the cameras are located. Make sure they aren’t video recording in a private area, such as a bathroom. Courts have traditionally upheld individual privacy rights over the property rights in a residential home. Consider limiting the use of cameras to the exterior of the residence. Violating state and federal recording laws can involve criminal penalties.
ln addition, Texas, like many states, recognizes several types of common law invasion of privacy claims. At its essence, invasion of privacy protects a person against unreasonable intrusion upon his seclusion, solitude, or private affairs. Even though recording may be in the seller’s house, courts have found that a visiting party can have a valid claim when the homeowner overreaches.
Illegal recording is a felony offense in Texas, and anyone who has been recorded in violation of the law can bring a civil suit to recover $10,000 for each occurrence, actual damages in excess of$10,000, punitive damages, attorney’s fees, and court costs.
Help your sellers avoid criminal or civil liability by encouraging them to concentrate on feedback given with consent and leave the mics and hidden cameras out.
Help your buyers be smart about surveillance
- Don’t discuss confidential negotiations within a home.
- Be careful about over-enthusiasm of particular features in a residence.
- Realize that most video recordings are legal. You and your client’s body language and gestures sometimes tell more that you think.
- If talking on the telephone, make sure that the owner’s neighbors can’t overhear your conversations. Neighbors are often nosier than the owner.
- If you are really worried that someone is playing unfair, turn on a faucet. The audio tones from the running water create white noise that masks voice tones and makes it difficult for micro-phones to do their job.
Don’t be too paranoid. Be security smart, but don’t let it ruin your real purpose to be at the house.
The information contained herein first appeared in the November 2017 edition of Texas REALTOR® Magazine and is being reprinted with the permission of Texas REALTOR® magazine and the author, Wes Bearden.
Please click here for a printable version of this great resource.
WARNING! WIRE FRAUD ADVISORY:
Wire fraud and email/phishing attacks are on the rise! If you have an escrow or closing transaction with us and you receive an email containing NEW or REVISED wiring instructions, DO NOT respond to the email. Instead, call your closing team immediately, using a previously provided phone number or email address, to verify instructions prior to sending funds. DO NOT use any contact information provided in the suspected phishing email!
SELLERS: Bring your banking information to the closing table. We will give you a wiring instructions form for your completion and your original signature. We will only wire your sales proceeds based on those completed instructions.
OUT OF TOWN SELLERS: Include your original signed wiring instructions form along with the fully executed closing documents when you return your closing package to us.
BUYERS: Once requested by you, we will send our wiring instructions directly to you in secure email communication noted by [rtt-secure] in the subject line. THESE INSTRUCTIONS WILL NEVER CHANGE. Before you initiate your purchase money wire, please call your Republic Title of Texas, Inc. closing team to verify the wiring instructions. Just a reminder, a cashier’s check may be the safer option.
If you are ever in doubt about an email or wiring instructions, please call your closing team at Republic of Texas, Inc. You can find a list of all of our offices under locations on our website.
Click here for a printable version.
We have all been or no someone that has been affected by cyber security threats, There seems to be a new threat everyday. From email hacks, to company breaches, to those scary phone calls from the “IRS”, we all need to be on alert and educate ourselves and our customers on how to protect our information from these scams and threats.
We have two great classes coming up that will give you some tools that will help you learn how to protect sensitive personal data in today’s ‘electronic’ age. Please RSVP today!
Multi-factor authentication (MFA) is an authentication method in which a computer user is granted access only after successfully presenting two or more pieces of evidence (or factors) to an authentication mechanism: knowledge (something the user and only the user knows), possession (something the user and only the user has), and inherence (something the user and only the user is).
Two-factor authentication (also known as 2FA) is a type, or subset, of multi-factor authentication. It is a method of confirming users’ claimed identities by using a combination of two different factors: 1) something they know, 2) something they have, or 3) something they are.
A good example of two-factor authentication is the withdrawing of money from an ATM; only the correct combination of a bank card (something the user possesses) and a PIN (something the user knows) allows the transaction to be carried out.
Two other examples are to supplement a user-controlled password with a one-time password (OTP) or code generated or received by an authenticator (e.g. a security token or smartphone) that only the user possesses.
Two-step verification or two-step authentication is a method of confirming a user’s claimed identity by utilizing something they know (password) and a second factor other than something they have or something they are. An example of a second step is the user repeating back something that was sent to them through an out-of-band mechanism. Or, the second step might be a six digit number generated by an app that is common to the user and the authentication system.
The use of multiple authentication factors to prove one’s identity is based on the premise that an unauthorized actor is unlikely to be able to supply the factors required for access. If, in an authentication attempt, at least one of the components is missing or supplied incorrectly, the user’s identity is not established with sufficient certainty and access to the asset (e.g., a building, or data) being protected by multi-factor authentication then remains blocked. The authentication factors of a multi-factor authentication scheme may include:
- some physical object in the possession of the user, such as a USB stick with a secret token, a bank card, a key, etc.
- some secret known to the user, such as a password, PIN, TAN, etc.
- some physical characteristic of the user (biometrics), such as a fingerprint, eye iris, voice, typing speed, pattern in key press intervals, etc.
- Somewhere you are, such as connection to a specific computing network or utilizing a GPS signal to identify the location.
Have you been receiving phone calls from unknown callers (mainly from Sierra Leone)? Well, you are not alone. These are scam calls.
The FCC advises the following:
- Do not call back numbers you do not recognize, especially those appearing to originate overseas.
- File a complaint with the FCC if you received these calls: fcc.gov/complaints
- If you never make international calls, consider talking to your phone company about blocking outbound international calls to prevent accidental toll calls.
- Check your phone bill for charges you don’t recognize.
For additional details review the links below: