BARRISTER'S BRIEFING: They Might Be Watching or Listening: New Eavesdropping Disclosures

For years, people have been able to eavesdrop on others. This had been done by wiretapping phones, electronic listening devices and cameras. Sometimes these devices are obvious; other times, they’re hidden. Today, home security systems and “nanny cams” are everywhere. Recently, NYSAR came out with new disclosure forms and recommended disclosure language relating to the use of audio devices in a home for listening into people’s conversations during an open house, a showing, or any other real estate-related activity.

First, it’s important to understand the laws surrounding the use of these devices and how to handle their presence when listing or showing a property. Second, because of the pervasiveness of these devices, NYSAR created disclosure forms which should be presented to the homeowner/landlord and any prospective buyer/tenant relating to the use of these devices. These forms should be signed by the necessary parties in order to protect them and the real estate agent. Finally, HGAR has adopted these forms and they are available in our document library and HGAR has updated its Exclusive Right to Sell and Exclusive Right to Rent agreements to add necessary language related to these important disclosures. So today, let’s go over these new developments.

The Law

Eavesdropping under Penal Law §250.00(2) states: “Mechanical overhearing of a conversation means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.” Additionally, Penal Law §250.05, sets forth the crime of “eavesdropping” where “a person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”

The simple meaning of these provisions, read together, means that you cannot record a conversation unless one party to the conversation is aware and permits it. If the party listening is not part of the conversation and no one knows they are being recorded, it’s illegal. It is legal if one person to the conversation is aware and consents to the records (i.e.. all parties do not need to consent; only one). As a result, it is a crime for a homeowner to use audio recordings during showings unless the seller is showing the house and is part of the conversation or the listing agent is aware of the audio device, is present, and participating in the conversation (he/she can’t just be nearby and not part of the conversation).

A real estate licensee who is aware of a homeowner/landlord’s intent to use audio recordings must warn them not to do so unless they obtain the proper consent; otherwise, the homeowner/landlord may be found guilty of a Class E Felony, and the real estate agent may be complicit in that crime. Further, it would be a violation of licensing law if the real estate agent did not disclose the fact that the homeowner/landlord is recording conversations; therefore, the real estate agent must advise all cooperating brokers and consumers if a homeowner/landlord is using audio devices and receive their written consent to be recorded.

It is important to note that the use of video recording devices (with no audio) is permitted, so long as the recording is being done where there is no expectation of privacy (i.e., bathroom, bedroom, etc.) and they are not required to be disclosed for security purposes.

Seller/Landlord Audio Recording Device and Disclosure Form

NYSAR had created, and HGAR has adopted, two new forms and strongly recommends that all Realtors use them. The first is the Seller/Landlord Audio Recording Device and Disclosure Form. It can be found at https://www.hgar.com/content/uploads/2022/11/SFL-NYSAR-Audio-Recording-Device-Disclosure-Form-Final-11-22.pdf.
This form advises the homeowner/landlord/property manager that it is in violation of New York State Penal Law to mechanically overhear, record, stream or otherwise document conversations if they are not a party. This applies to open houses, showings, etc. The form goes on to state that if such devices are present, visitors will be notified of their presence. If such devices are present and operating, the visitors must execute the consent portion of the form.

Buyer/Tenant Audio Recording Device Disclosure

The second form is the Buyer/Tenant Audio Recording Device Disclosure form. It can be found at https://www.hgar.com/content/uploads/2022/11/SFL-NYSAR-Buyer-tenant-audio-recording-device-disclosure.pdf

This disclosure advises both buyers and tenants that the homeowner/landlord may have an audio device to record, stream or otherwise document conversations at the subject property during open houses, showings, etc. It goes on to state that absent a disclosure from a homeowner/landlord that there are no devices present, buyers/tenants should presume that every property being shown may have a device present and that their conversation will be heard. Therefore, they should not discuss matters that they do not wish to share with the homeowner/landlord. This form is a section that must be filled out by the buyer/tenant acknowledging that they have received and read this disclosure notice and that the homeowner/landlord may be accessing audio of any conversation conducted at the property.

Modification to the Exclusive Right to Sell And Exclusive Right to Rent Agreements

In accordance with NYSAR’s recommendations, HGAR has updated its OneKey MLS Exclusive Right to Sell Agreement: https://www.hgar.com/content/uploads/2022/11/OneKey-Exclusive-Right-to-Sell-Listing-Agreement-11.22.pdf and its Exclusive Right to Rent Agreement: Exclusive Right to Rent link: https://www.hgar.com/content/uploads/2022/11/OneKey-Exlusive-Right-to-Rent-Listing-Agreement-11.22.pdf
to include language relating to the use of audio devices. This new language notes that it is in violation to record, stream or otherwise document the conversation of an individual during real estate-related activity at a property if you are not a party to that conversation. It adds that if such a device is present and will be operating, and any potential buyer/tenant is viewing the property, the homeowner/landlord understands that the listing agent must disclose the presence of such a device.

Conclusion

The use of audio recording devices is now commonplace. However, this does not mean that they can be used with impunity, even in our own homes. The unauthorized listening in on a private conversation, without permission, is a felony. Therefore, all Realtors should adopt the new disclosure forms and the updated Exclusive Right to Sell and Exclusive Right to Rent Agreements (and throw out the old ones) to ensure that the homeowners/landlords are compliant with state laws, and that buyers/tenants are aware of these laws and notified of the conditions at a prospective property. Failure to do so, may result in criminal charges, loss of licensure, and at a minimum, the inadvertent sharing of confidential information that was not intended to be shared.