They’re everywhere: doorbell cameras in the entryway. Security cameras on the roof. Spy cams in the living room.
And who can blame homeowners for embracing them? They want to protect their family, their investment. And particularly when a home is on the market, they want to make sure nothing is touched, damaged or worse yet, stolen during a showing.
Many see these unobtrusive security features as innovative new amenities of modern homes. But Brian Swan, CEO of OnCourse Learning Real Estate, sees them as red flags with real potential for privacy violations that can change real estate law — and careers.
“I am an attorney by trade and decided to start researching it myself,” said Swan. “And the more I found, the more I knew we needed to offer a class on it. This is entirely new ground with liabilities no one is even considering yet.”
The new, two-hour course will explore the ins and outs of the privacy issue, tackling both the buyer’s and the seller’s agent perspectives. And even after completing such exhaustive research, Swan was surprised how murky the issue remained.
“We started with similar case law first, to find what kind of law would govern this type of situation,” he explained. “We looked at all the different claims that might come up in something where a buyer felt there was a violation of their privacy, and if buyers even had a reasonable privacy expectation.”
So many scenarios presented themselves to Swan and his team.
“We looked at a number of potential liabilities including discrimination. For example, with a doorbell cam, the seller can see if the buyer is handicapped. They see if there are children with them. They see what race or gender they are. Depending on attire, they might see religious affiliation. All of these protected classes have now become an issue visually for the seller.”
And all that information comes into play particularly if an offer for purchase is made and then rejected. A buyer whose visage and possibly language was captured on video could have substantial grounds for a bias claim.
“If the buyer lodges a complaint with HUD, regardless of whether any fault is eventually found, the investigation is going to be costly for the seller,” Swan noted.
Then there is the brokerage, which could also carry a form of liability in various situations.
“There are a number of states that carry regulations for brokers to exercise reasonable supervision over their agents,” he continued. That supervision might be to provide some degree of training on privacy. If the agent does not adequately inform the client and does not exercise some duty of reasonable care and protection over their client, that can fall back on the broker as not fulfilling that duty of supervising.
Swan and OnCourse Learning Real Estate purposefully designed the course to provide specific information and empower participants with an in-depth understanding of the issue and best practices to take away.
“Brian taught about the legal ramifications of recording conversations and how that can create an issue in the selling or buying process,” said Aceneth Warner, Principal Broker. “Because of this course, my brokerage now has procedures in place to properly handle this issue.”
“There are two sides to every argument,” Swan concluded. “Agents should know that it may not be as cut and dried as it might seem. They should know the possibilities of what could arise and how to talk to their clients. And that’s exactly what we deliver with this course.”