Can you spot the major mistake made by a real estate agent and their buyer in the following interaction?
Agent: “This porch seems to be in surprisingly good condition, and I love the color of the front door” (gestures at the eggplant-colored door in front of them)
Client: “I love it… honestly, I absolutely love everything about this house, this is my favorite of the ones we’ve seen… I’m worried that someone else is going to get it, should I start by offering at asking or should I do twenty thousand over asking?”
You may already know what could have gone horribly wrong here, but if you don’t, the major problem is not what they’re saying, but where they’re saying it. You should always assume that you’re being recorded at a showing, especially on the front porch. Even if you can’t see a security camera immediately, you should assume it’s there, and that it’s recording audio.
It’s completely possible that the seller doesn’t have a camera, but if they do, they just got a notification of activity on their porch. If they clicked on that activity, as I do all the time with the app for my porch camera, the audio will likely start playing even if they weren’t intending to listen to it. Now they know the buyer is desperate to get the house and is willing to offer well over asking in order to do so.
I don’t enjoy that we are constantly being recorded by random objects like front porches or someone else’s glasses, but it’s the world we live in. You should always instruct your client to say nothing meaningful whatsoever at a showing. It’s not just the front porch–many people have cameras inside their homes, like nanny cams or pet cameras, and some people have even been known to leave a phone purposefully recording, though this is usually illegal.
Speaking of illegal, recording a conversation that you are not present for is usually not legal. Some jurisdictions even have a form for property showings in which a seller has to state the presence of any recording devices that may be active on the property. That said, just because something is technically illegal doesn’t stop it from happening all the time. Even if it’s illegal to purposefully record a conversation, how many people are actually going to prison for accidentally hearing chatter on their porch cameras?
As our legal system slowly grapples with what exactly a “reasonable expectation of privacy” means in the context of being secretly recorded, you want to make sure you protect your client. Every client should know to say nothing that could jeopardize their bargaining position while in (or around) the house. With some very chatty clients (or if you are very chatty yourself) you might even recommend a silent showing or perhaps just a piece of duct tape… I’m kidding, but it is important to emphasize the increasing likelihood of being recorded by the seller, intentionally or unintentionally.
I don’t mean to sound like I’m lecturing, but being cautious about recordings is something I’m constantly having to lecture myself about. For example, I’m terrified of live photos, and I think everyone else should be, too! I was recently on a hike with friends, and we were constantly taking photos while one friend was complaining about some major, secret family drama. After posting these pics on Instagram, we realized that all the photos had been live… imagine my friend’s parents clicking on a photo of their son, thinking “wow, what a great time he’s having, I wonder what he’s talking about?” Terrifying. After a group panic attack, we discovered that Instagram automatically converts live photos to still, thus eliminating audio. Of course, if those photos were in a text message, the audio would have been loud and clear. (Side note: every detail about this story has been changed to protect the innocent!)
It’s not just family drama; imagine if you received an unintentional live photo texted from the listing agent, and in the background you hear the seller saying “Yeah, the contractor was kind of sketchy and didn’t do a great job, but at least it looks ok.” This background conversation may contain a serious material fact that may… or may not… have been mentioned in the seller disclosures. As a fiduciary to your buyer client, you would be legally obligated to tell your buyer about this unintentional recording, and this could change the entire transaction, if not ending it altogether.
If you accidentally text a live photo to the opposing agent and they listen to it, you may feel violated. However, the opposing agent in this case didn’t secretly record anything; you proactively sent them a recording of your own voice, so it’s difficult to argue that they obtained this recording illicitly.
Keeping your client’s information secure is no longer just about keeping files locked up, it’s also about being on stage in unexpected places, unfortunately. That said, you could use this to your advantage if you and your client like acting and want to have a fake conversation in front of the seller’s security camera. You could make it seem like your client isn’t particularly thrilled about the property, when in fact they’re ready to offer $100,000 over asking if necessary. This could have a lot of negative, unintended effects, though, so I wouldn’t recommend this… especially if you and your client are terrible at acting!
