On behalf of Sayer Regan & Thayer of Sayer Regan & Thayer, LLP posted on Tuesday, December 1, 2020.

With the pandemic hitting the pause button on many in-person showings, tours and open houses, more and more home sellers and real estate agents have opted to hold virtual showings to respect social distance rules and to limit the spread of the virus. However, virtual real estate showings come with their own legal liabilities that not many people are aware of.

This is when agents will take photos, make video recordings, and live-stream tours so that potential buyers who can’t be there in person can look at a listed property and maybe even put in an offer – all from the comfort of their own home. Here’s a look at the risks involved.

Broker Perspective

From the buyer’s broker perspective, there are many factors to consider when it comes to virtual showings, including technology, health and legal concerns. Health concerns are similar to sellers as they are for buyers (see the CDC’s recommendations here). Brokers and agents will want to take protective measures while virtually showing a property so that they don’t transmit or acquire pathogens. Any buyer who wants to tour a property should have similar concerns. Aside from health, most concerns on the buyer side happen to be legal in nature.

Permission and Privacy

First off, buyers’ brokers and agents have to determine whether or not they are allowed to make media for virtual showings at all, and whether or not they can freely distribute that media. People have a reasonable expectation of privacy within their own homes. Buyers’ agents who are not physically present on someone else’s property have to have permission to be there, or else it is considered trespassing.

Usually, one must receive permission to enter a property via an online scheduling tool or through the MLS with the listing broker. Permission may be contingent on the buyers’ broker NOT taking and distributing media. In that case, buyers’ agents cannot make media under any circumstance. Or, maybe the condition is that the buyers’ broker can take media but can’t distribute it outside of the buyers themselves.

Distribution Considerations

Buyers’ brokers have to consider whether they have the means necessary to distribute media to their buyers in regards to the media channels and technology platforms they can use. They will also need to know whether or not other parties can make use of their media, as well. Brokers should familiarize themselves with the end-user license agreements of all platforms they plan on using to make and share media as a result of a virtual showing. If the platform utilizes said media in a manner that is not permitted by the seller (i.e., creation of derivative works or public distribution), the buyer’s broker could be in legal trouble.

It’s also important for buyers’ brokers to fully understand the technology enough to not distribute the media accidentally, so as not to violate the seller’s requirements or publicly embarrass their buyers. Live-streaming brings extra legal challenges due to its live nature, as it cannot be edited prior to distribution.

It can be tricky to know the ins and outs of the legalities involved in virtual real estate showings. Don’t land yourself in hot water. Know the laws!

Contact Sayer Regan & Thayer for Real Estate Law

If you are a home buyer, seller, or real estate agent and want to know more about legal liabilities for virtual real estate showings, contact us today for your free initial consultation.

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.