‘Nanny Cams’ and the Real Estate Professional

by By Ashley Stolba, MAR Associate Counsel | Jun 30, 2015
In this day and age, there is a good chance that you are being recorded on video when you are in public spaces. However, what we have heard recently is that this trend is now moving into private spaces, including homes.

Sellers install webcams in their homes for a variety of reasons, including safety concerns, curiosity, and obtaining an edge on negotiations. Regardless of the reason, if your seller wishes to use a web-cam, it is important to be aware of legal issues surrounding the use of these devices when taking the listing.

If the webcam has a feature that streams or records audio, the seller must obtain consent from all of the individuals being recorded in advance of the recording. Massachusetts has some of the strictest wiretapping laws in the country; it is one of the few states that requires all parties involved to give consent. Therefore, it is illegal to record conversations of prospective buyers and their agents without their permission.

If the webcam does not stream or record audio, or the seller has disabled this feature, the law is not as explicit. Neither Massachusetts nor federal wiretapping laws prohibit video surveillance or require consent from the parties. However, it is strongly encouraged that if a seller is using a webcam it should be clearly disclosed to all prospective purchasers and their agents.

Because many agents and their sellers are unaware of the wiretapping laws in Massachusetts, you should err on the side of caution and warn prospective buyers that they may be under surveillance.  If you represent a buyer, you should consider asking listing agents if there is a webcam in use at the showing.