Q: I am a real estate broker representing a seller of a condominium unit. My clients have informed me that they intend to record our conversations as well as employ video and audio surveillance for all showings of the property. Is it lawful for them to record our conversations and my showings without my consent?
A: The scenario presented raises three important questions: (i) can smeone record their own conversations without the consent of the other party or parties to the conversation; (ii) can someone record conversation between third parties without being a party to the conversation; and (iii) can someone take video recordings of activities taking place outside of their presence?
The answer to question (i) is yes. It is lawful for anyone to make audio recordings of a conversation to which they are a party without the consent of the other party. Conversely the answer to question (ii) is no. Subject to some specific exceptions, it is a Class E Felony in New York for anyone to intentionally record a conversation or discussion to which they are not a party, without the consent of at least one party involved in the conversation. Finally, the answer to question (iii) is yes. Generally speaking, someone may record video (without the audio) of third parties in their home without the consent of those individuals.
Important Tip: For purposes of full disclosure and enhanced security, a real estate broker should inform parties that the premises are under surveillance when conducting an open house or a showing.
The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel
Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP