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Legal Landmines of 2021: Recording Devices and Facebook Ads

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Originally Published in the April 2021 Edition of North DFW Real Producers Magazine

What are the top legal landmines of 2021 and what do you need to do to make sure you are safe? Trista Curzydlo, J.D. identfied two at CCAR’s Blast Off 2021, and agent beware- your Errors and Omissions Insurance does not promise coverage on these liabilities.

Legal Landmine #1: Recording Devices

Private conversations are a thing of the past when showing a home. According to a survey conducted by Harris Poll for NerdWallet in 2018, 15% of Americans who have ever sold a home said they’ve use surveillance cameras to monitor potential home buyers. And 67% say they would use such cameras if they were selling a home that already had them.

But are your clients breaking the law when recording or surveilling home buyers?

“Each state has different privacy laws,” said Trista Curzydlo, J.D. at CCAR’s 2021 Blast Off event, “there are ‘one-consent’ states and ‘all consent states.” All-consent states require all participants to consent to be recorded. Texas is a one-consent state, requiring only one party to consent to be recorded.
It is important agents are aware of what qualifies as consent in order to avoid potential litigation exposure. A sellers consent to record does not qualify.
Since the seller turns on the device then leaves, they do not count as a party to the conversation and therefore do not fulfill the one-consent requirement. “Neither do agents who say ‘I consent’ to a camera,” said Curzydlo.

The buyers consent is required.

The buyers consent to being recorded is imperative. The best practice for listing agents is to indicate that there will be a recording device present in the MLS Private Remarks. Additionally, a listing agent should notify on property that recording devices are present. On property notification is best accomplished through signage, as the visible presence of the device is not sufficient.

Buyer’s agents need to inform clients of the potential for being recorded and coach their clients to behave accordingly. For agents who wish to be more proactive can purchase apps or devices that detect if there are hidden cameras present or open Bluetooth devices.

Legal Landmine #2: Facebook Ads

Your Facebook ads may be violating the Fair Housing Act, even if you did everything right. In 2018 HUD accused Facebook of “unlawfully discriminating against people based on race, religion, familial status, disability and other characteristics that closely align with the 1968 Fair Housing Act's protected classes. ”

Curzydlo demonstrated how this still plagues agents by creating an ad during the Blast Off 2021 event. When creating the ad Curzydlo chose Fair Housing Act compliant choices, however Facebook terms of use says they ultimately choose who actually sees your ad. “Which means your criteria that did not violate Fair Housing now does,” said Curzydlo.

So what are the best practices when placing an ad on social media? Curzydlo urges agents to “Read the Terms of Use. Make sure you know if you determine who sees the ad or if they do. If they choose, know what criteria are they using to choose.”

As new inventions and norms give way to new best practices, new legal landmines are sure to emerge. Be sure to watch for updates from your local, state, and national Realtor Associations.


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