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Legally speaking: Is it OK for my buyer to video a property?

By Lorie Garland, OAR Assistant Vice President of Legal Services

The OAR Legal Assistance Hotline receives an array of real estate-related legal questions — including license law issues, disclosure, contract law, ethics and commission problems, among others. In an effort to help you work within the law, our “Legally Speaking” series spotlights some of the timely questions that are being asked by REALTORS. The following explores further considerations regarding photographic rights of a listing… 

Q: I would like clarification on a buyer or their agent’s right to photograph a property during a showing. I represent a couple looking for a home. A home just came on the market that my buyers think will be perfect for them. I have scheduled a showing for tomorrow evening. However, I just received a call from the wife that her husband has been called out of town on business and will not be available for the showing. She does not want to reschedule the showing but has asked if she could video the home as we walk through. If she likes the home, and she is confident she will, the video will be sent to her husband so they can make an offer quickly. Do I need permission from the listing agent for my buyer to video the home?

Another situation I am dealing with involves a buyer’s agent who, during a showing, took a picture of my seller’s home and posted it on social media. The picture was of a messy storage room and included the statement “300K for this mess!” My sellers are very upset and feel the picture and statement give the impression their home is unkempt, which it is not. Although I told my sellers that no one but them will know it is their property, as the property address was not included, they still feel the agent’s conduct was unprofessional and plan to file a complaint.

A: A listing agent’s authorization to access a property for showing purposes does not include permission to video or photograph the property. This applies to both the buyer and their agent and regardless of the purpose for the photos. A buyer’s video for her husband or an agent’s photo for social media should only be taken with the seller’s permission.

With regard to your buyer who is requesting to video the showing, you should convey your buyer’s request to the listing agent. The request should include why and how the video will be used. The listing agent should convey the request to the seller to determine whether permission will be granted. If granted, the video should be taken and used on the terms set by the seller.

Failure to obtain permission or comply with the terms of permission could result in a license law or ethics complaint against a licensee. The Ohio Real Estate Commission can sanction a licensee for a violation of the license law, including the Canons of Ethics. Article 1 of the Canons provides in part, “The licensee should endeavor to maintain and establish high standards of professional conduct and integrity in dealings with members of the public as well as with fellow licensees and, further, seek to avoid the appearance of impropriety in any activities as a licensee.” It is also a violation of the license law if it is found a licensee has engaged in “dishonest or illegal dealing, gross negligence, incompetency, or misconduct.” Article 1 of the Canons and misconduct are often cited as the basis for disciplinary action when a licensee is found to have engaged in unprofessional conduct. Ultimately, it will be the Ohio Real Estate Commission who will determine if a licensee’s conduct falls below the standards set by Ohio law for real estate practitioners.

REALTORS commit to a higher level of professional conduct by their adherence to the Code of Ethics. The Code includes Standards of Practice addressing access or use of a property. Standard of Practice 3-9 provides “REALTORS shall not provide access to listed property on terms other than those established by the owner or the listing broker.” Standard of Practice 1-16 provides “REALTORS shall not access or use, or permit or enable others to access or use, listed or managed property on terms or conditions other than those authorized by the owner or seller.” Whether a REALTOR’s conduct is a violation of the Code of Ethics would be determined through the professional standards process at the local Board.

Photographing a property should only be with the permission of the property owner and used in a professional manner.

Tags: legal, Legally Speaking