In today’s technologically advanced world, wiretapping and electronic surveillance have become increasingly prevalent concerns in many contexts, and real estate transactions are no exception. Shedding light on wiretap laws in Pennsylvania and how they relate to real estate transactions, ensures agents have better understanding of the legal framework for how to deal with audio recording of individual’s conversations.
Pennsylvania, like many other states, has a specific wiretap law in place to protect the privacy rights of its residents. Pennsylvania is a “two-party consent” state, meaning that all parties involved in a conversation or communication must provide their consent before it can be recorded. Consent must be obtained from both the person sending the communication and the person receiving it. This requirement applies to recordings or active interception of both wire (telephone) and oral (spoken) communications.
For example, if a seller is listening from a smart speaker or device, or recording the audio of others on their property through methods such as nanny cams, ring cameras and surveillance video they could be violating the law and committing a criminal act, which has a max sentence of seven years and a $15,000 fine. While the law does not prohibit recording video only, most devices these days do both so for the purpose of this article we’ll assume that any device has capacity for audio.
If you are a listing agent, make sure to discuss with your client whether or not they have any listening or recording devices on the property. As in, explicitly ask the question “do you have any listening or recording devices?” and then maybe list some examples. As a rule of thumb, consider including something about the audio and video devices in the MLS (if permitted) and anywhere else it will get in front of buyers and others in the property (e.g., signage near the front door or highlighting the devices in the property) to assure that they will not be able to later say that they had no idea that they might be recorded. Providing a detailed description of where they are located can’t hurt either.
Why is this important? Because the wiretap law doesn’t prohibit recording where a party provides consent or where there is no reasonable expectation of privacy. If a buyer knows that they are going to be recorded but goes into a property anyway a seller would have a much stronger position to argue either that the buyer consented through their presence or that they were on notice that they shouldn’t expect privacy while they were there.
As a buyer’s agent or broker inform your clients to exercise caution when discussing sensitive matters during a showing in the event that they are being recorded. It is crucial to ensure that all discussions and negotiations take place in secure and private settings. There is conspicuous and clear language in paragraph 14 of the Buyer Agency Contract (Form BAC), Recordings on the property, which states, “Buyer should be aware that any discussions, including discussion of negotiation strategies, held on the property may not be confidential.” There is also language in the listing contract and agreement of sale that reflects caution with audio and recording devices whether the buyer is videoing the property or seller has monitoring devices in the home.
On a related topic, buyers sometimes want to record their experience in a property. As a seller’s agent or broker, you should talk that through with your seller to be sure they understand and to set up any guiderails to help them feel comfortable. That might include instructions in the MLS that buyers are prohibited from filming some or all or the property. Or if sellers have specific items they don’t want filmed for whatever reason it might make sense for them to secure or remove those items prior to showings. Similarly, if you’re a buyer’s agent and know your clients may want to do some sort of extensive recording – maybe one spouse wants to record the walkthrough for the other spouse to see later – it’s a good idea to just ask permission of the seller to ensure that nobody is surprised when it happens. As with so much in a transaction, it’s usually better to have full disclosure with the opportunity for a discussion before something happens rather than picking up the pieces afterwards.