Home sellers recording would-be buyers

Trying to sell a home - especially in this shaky real estate market - can be frustrating and sometimes scary.

Sellers are not only inviting a parade of strangers to tour their home, often without so much as a bite, but they're leaving exposed their belongings as unknown guests browse through bedrooms and peak in closets - occasionally without realtors.

As homeowners struggle to sell in a competitive market, and as news reports circulate about criminals targeting show homes and “open houses,” more homeowners are taking unconventional and innovative measures, including setting up video and audio recorders in their homes to gain insight into what is hurting their chances at selling and to protect their property.

“It's something that we have suggested to our members might be a good idea - as long as they are being conscious about state and local laws - as a safety measure to deter criminals,” said Lesley Walker, associate counsel for the National Association of Realtors.

In July, the Iowa City Area Association of Realtors emailed members regarding the budding debate about sellers using recording devices “to capture Realtor/buyer actions and conversations during open houses and showings.”

Happy sellers

The association addressed questions of legality, asserting that sellers “have the absolute right to do this, and there is no requirement for them to inform anyone.”

When the Coonses put their Iowa City home on the market in March, they didn't have much luck initially. Would-be buyers toured the house but never made an offer and rarely gave feedback. So the couple decided to go directly to the source by recording - and even watching live - some showings and open houses.

“Sometimes it was useful, and sometimes it wasn't,” said Anne Coons, going by her middle name.

They started by putting an iPod atop a ceiling fan and recording the comments of house hunters. On several occasions, the couple used the video camera connected to their PlayStation 3 to capture showings that they could watch live on their PlayStation Portable device from a nearby coffee shop.

That was helpful during open houses to “make sure people weren't rifling through stuff they weren't supposed to be,” Coons said.

In the end, she said, the recordings did what they were supposed to do: protect the property and help sell the house. Through listening in on showings and open houses, according to Coons, the couple learned that would-be buyers couldn't get past their blue Berber carpet.

“A week after we changed the carpet, we got an offer,” Coons said.

Only once did a couple within earshot of the recorder discuss details of how much they would offer, Coons said. And that couple didn't end up bidding, she said.

“The people who did offer on the house, we were surprised because they didn't seem interested in it,” Coons said.

Is it legal?

Although the National Association of Realtors is recommending use of cameras, Walker is recommending sellers disclose the surveillance.

Legal experts and attorneys have said the law does not require disclosure of recording devices, but Walker said it's better to be safe.

“Check local and state laws to make sure you've covered all your bases,” Walker said.

Paul McLaughlin, staff counsel for the Iowa Association of Realtors, has advised his organization and members that homeowners aren't legally required to tell anyone if they're recording showings because there is no expectation of privacy in someone else's home.

“It's still the homeowners' property,” he said.

Iowa Code calls it a serious misdemeanor for anyone who is not part of a conversation or present for a conversation to listen to or record that conversation or communication.

But University of Iowa associate professor Lyombe Eko, who specializes in comparative media law and ethics, said everyone's zone of privacy in their own homes are protected by law.

“Homeowners have the right to install recording devices inside their homes for any lawful reason they see fit,” Eko wrote in an email to The Gazette, adding that such a move might not be ethical. “Realtors must address this question: they have a right to record home viewings, but is it right for them to exercise that right?”

UI law professor Randy Bezanson, who specializes in constitutional law, said he believes it's a gray area that sellers should be careful before entering.

“The question is about reasonable expectation of privacy, and I would argue before a court that, yes, (prospective buyers) do have an expectation of privacy,” Bezanson said. “If the seller leaves their house, why are they doing that? Because they want the buyer to be able to be there alone.”

Staying tight-lipped

Regardless of ethical implications, the Iowa City Area Association of Realtors is alerting its members that sellers can and are recording showings and open houses and to be careful about what is discussed in homes.

“We are recommending not discussing strategy or any important information in the home,” said John Marshall, a realtor with Re/Max Affiliates and president of the Iowa City Area Association of Realtors.

He said sellers might have perfectly logical reasons for setting up recording devices, and realtors are just going to have to adjust to the ways in which technology is changing the real estate landscape.