Who’s watching? Who’s listening?
Many of us have seen the HGTV shows where the buyers come into a house and make their funny but critical comments about the home’s décor and color palette. They don’t know they are being recorded, and the seller is watching and listening in hopes of learning how to improve his home’s appeal. Moments later in TV land, the freshly restyled home blows away those same buyers who gush over the better design choices. Then we see the seller ride off into the sunset with a big check for the sale of his home. But this is not reality. Or is it?
Technology today comes in awfully small packages and has become more and more affordable. For the seller who is uncomfortable with the idea of the public having access to the home, security cameras are a way to keep an eye on who’s coming through the door. Additionally, some will tell you that it’s the only way to get truly honest feedback on how the house appeals to buyers. Of course, some comments can be harsh and it is important to be mindful about what you say when you are in someone’s home. We have known brokers who have lost listings after making snarky comments about the owner’s personal décor only to find out they were being recorded. It’s an eerie feeling to think that someone could be watching, but with today’s technology, that is often the case.
New Mexico is a one-party-consent state when it comes to recording telephone conversations. Does that mean it would hold up in court if a seller recorded a buyer without his knowledge and gained information that aided him in a negotiation? If a buyer tells his broker inside a home that he absolutely loves the house and will pay full price if he has to, the seller now feels confident enough to hold to her asking price. Months after closing, the buyer learns from a neighbor that he was recorded each time he was inside the house. Would that buyer have a legitimate case against the seller?
Buyers could use the technology to their advantage as well. Knowing they are being taped, they could manipulate the seller by stating the house is nice but not as nice as the one down the street, and perhaps they would make an offer but any counteroffer over $375,000 would not be worth it. Buyers and brokers with a bit of game and reverse psychology can make the seller lack confidence when the negotiation begins.
Many multiple-listing services across the country have started the discussion regarding recording devices. Here in Santa Fe, we have yet to decide on it. Some states have laws in place that prohibit eavesdropping and devices that record conversations without consent could be a violation. Some states have laws about just where cameras may be placed. For obvious reasons, bathrooms are prohibited, so viewing buyers just looking at a bathroom could even be a violation of that law. While the industry tackles these issues, the popularity of these cameras will continue to grow. We believe that disclosure is the safest bet for all parties. And I would recommend someone consult with an attorney before using recording devices in the home.
If you are a seller utilizing a recording device, let folks know when they are in your home. For buyers, it is imperative to keep true thoughts and feeling to one’s self until you are in a private conversation with your real estate broker. Remember, you never know when someone might be watching.