The legal hotline was recently asked if a listing agent knows that a seller has a surveillance system installed in their home – do they have to tell potential buyers that they are being recorded? YES! It is a crime in Massachusetts to secretly hear or record another individual without their knowledge and consent pursuant to Massachusetts General Laws Ch. 272, § 99. A device that only records video with no audio, however, is permissible under the statute. What about not recording but “listening live” via their open cell phone? YES! That would be a crime because you are secretly hearing.
As a listing agent, it is important to inquire whether a seller has any type of device in the house that records audio, and whether it will be in operation during any showings and open houses. If a seller has a device that records audio and intends to record showings and open houses, notice must be given to all individuals subject to recording. Placing a sign in an obvious location, such as on the front door, to notify potential buyers and their agents of the recording is sufficient to constitute consent. Including a note about the recording in the MLS listing is also recommended. If, after notice of the recording, an individual still chooses to enter the property, that constitutes consent to be recorded. As technology becomes a greater part of our day-to-day lives, this has become a much more frequent issue. As the penalties for recording without consent are significant, it is imperative to properly address this issue with sellers.
The information and services provided through the Massachusetts Association of REALTORS® is intended for informational purposes and does not constitute legal advice, nor does it establish an attorney-client relationship. The Massachusetts Association of REALTORS®, by providing this service, assumes no actual or implied responsibility for any improper use of responses to questions through this service. The Massachusetts Association of REALTORS® will not be legally responsible for any potential misrepresentations or errors made by providing this service. For more information regarding these topics authorized callers should contact the MAR legal hotline at 800-370-5342 or e-mail at firstname.lastname@example.org.