The coronavirus and “Safer at Home” orders propelled everyone into technology overload — Zoom, Microsoft Teams, Skype, WebEx, virtual open houses, remote online notarization and electronic earnest money payments, to name a few. And even before the pandemic that forever altered our world, behavior and business, video and audio surveillance equipment started to appear everywhere, including individual homes.
The accessibility of affordable, wireless security systems and wireless cameras has allowed numerous property owners to have surveillance equipment on their property. Property owners are equipping their properties with cameras on the outside, possibly on the inside, and even in the doorbells. This equipment may allow owners of real estate to hear, see, record and potentially have interactive conversations with individuals on their property even if the owners are not home.
The motivations behind homeowners’ decisions to have cameras in their homes and on their properties are numerous. For instance, it is not uncommon for property owners in more rural settings to have cameras at the beginning of their driveways to deter individuals from coming onto their property. In addition, individuals may have surveillance equipment to protect their property, to have a watchful eye on their children who come home from school before an adult can be home, to monitor a caregiver who attends to a family member while they are away at work, or to confirm the delivery of a package.
One thing we do know is that whatever the reason for having them on their property, cameras will continue to be everywhere.
Due to the increasing questions by real estate agents surrounding this issue, the WRA decided to add as one of its legislative priorities during the 2019-20 legislative session to clarify in Wisconsin law that it is not a violation of privacy for a seller to have audio or video recording equipment in the property during an open house, individual showing or other viewing of the real estate.
Prior to the law change, Wisconsin law did not prohibit sellers from using surveillance equipment or recording devices to monitor their homes during open houses or individual showings. Further, Wisconsin law did not require sellers or their agents to notify buyers or post any signs informing the prospective buyers or agents of the existence of surveillance in the property.
And as of January 22, 2020, 2019 Wis. Act 72 clarified in Wis. Stat. §995.60 the rights of those owning and entering properties for sale under surveillance. According to Wis. Stat. §995.60, “Use of surveillance devices in connection with real estate sales,” only applies to open houses, individual showings and other viewings in connection to the sale. In addition, Wis. Stat. §995.60 provides that:
- It is not an invasion of privacy when the owner of real estate has surveillance, whether audio or video, in an open house, individual showing or other viewing in connection to the sale of real estate.
- “Property” and “owner” are broadly defined to include all types of properties, not limiting the law to residential.
- The owner of the real estate may not copy, sell, rent, broadcast, post, publish, distribute, disclose, transfer, or otherwise share a representation of an individual recorded with a surveillance device unless it is pursuant to a court order or the request of law enforcement investigating possible criminal conduct.
- Use of surveillance equipment in bathrooms is prohibited.
- An individual who copies, sells, rents, broadcasts, posts, publishes, distributes, discloses, transfers, or otherwise shares a representation may be required to forfeit not more than $500.
The law does not require a seller to post or disclose that he or she has surveillance equipment in the property. Additionally, the law does not require the real estate licensee to ask the seller about surveillance equipment in the property. Further, the law does not require any disclosure by the real estate licensee as to any surveillance equipment in the property.
Sellers arguably have the right to protect their property, and for safety reasons, should not have to publicly announce by posting on the property or via the MLS that there is surveillance equipment in the property. Requiring sellers to announce that they have surveillance equipment impedes their safety rights in many ways. Sellers have placed their home on the market and allow buyers and agents to be in their home, potentially without the seller or their agent there. Sellers are not inviting the buyer or their agent as an overnight guest, but again are offering the buyer the opportunity to be in their home with a very limited set of facts.
Even with Wisconsin law clarifying it is not an invasion of privacy to have surveillance equipment in or on the property, licensees would be best served to be very careful about their observations and comments regardless if they are knowingly being recorded. Best practice would be to always advise your buyers to pretend they are being videotaped or recorded when in a property for an individual showing or open house.
Licensees should encourage buyers to refrain from saying certain things about the property — whether good or bad — until outside of the property. But keep in mind that “outside of the property” probably means out of earshot of the watchful doorbell that triggered a video recording when you stepped out on the porch after the showing.
995.60 Use of surveillance devices in connection with real estate sales
(1) DEFINITIONS. In this section:
(a) “Real estate” means land and the improvements to the land.
(b) “Record” means to take a photograph, to make a motion picture, videotape, audiotape, recording, or other visual or audio representation, or to record or store in any medium data that represents a visual image or sound recording.
(c) “Representation” means a photograph, exposed film, motion picture, videotape, audiotape, recording, other visual or audio representation, or data that represents a visual image or audio recording.
(d) “Surveillance device” means a camera, audio or video recorder, or any other device that may be used to observe, record, or transfer sounds or images.
(2) USE OF SURVEILLANCE DEVICES. Except as provided under sub. (3), an owner of real estate may use a surveillance device in or on the real estate to observe or record an individual who is present in or on the real estate for a private showing, open house, or other viewing of the real estate in connection with the owner’s attempt to sell the real estate.
(3) PROHIBITED USES. (a) An owner of real estate may not use a surveillance device under sub. (2) in a bathroom or washroom.
(b) 1. Except as provided under subd. 2., an owner of real estate may not copy, sell, rent, broadcast, post, publish, distribute, disclose, transfer, or otherwise share a representation of an individual recorded with a surveillance device under sub. (2).
2. An owner of real estate may provide a representation of an individual recorded with a surveillance device under sub. (2) pursuant to a court order or to the request of a law enforcement officer who is investigating possible criminal conduct.
(4) INTERPRETATION. (a) The use of a surveillance device by an owner of real estate in or on the real estate under this section does not constitute installing a surveillance device in a private place for purposes of s. 942.08 (2) (a).
(b) An owner of real estate that records a representation of an individual with a surveillance device under this section does not capture a representation of the individual under circumstances in which the individual has a reasonable expectation of privacy for purposes of s. 942.09 (2) (am) 1.
(5) ENFORCEMENT. An individual who violates sub. (3) (b) 1. may be required to forfeit not more than $500.
Cori Lamont is Senior Director of Legal and Public Affairs for the WRA.