September 8th, 2016
Jonathan asked the following question:
I just got off the phone with a potential client whom after nit-picking my service agreement brought up a point that made me wonder if I’m missing an important indemnification point in my contract:
She told me that her new listing agreements state that there may be “residual exposure” After the property is sold. This brings up privacy and security issues for the buyers of the property or if for any other reason the property goes off the market and media is still floating around online.
She mentioned buglers using Matterport floor plans to plan out robberies….
As I continue to use photos for my self promotion, I assume this can expose me to litigation for using images and full house scans of someone else’s property.
Have you or any of your readers encountered such an issue or is there something I’m missing?
First of all, I suggest that you use Joel Rothman’s license agreement (it’s included in my book The Business of Real Estate). The following is an excerpt from that license agreement that I believe covers the issue you are concerned about:
You authorize us to come onto the Property and take photographs. You have the authority to allow us entry and permit us to take photographs. You promise to indemnify us, defend us, and pay the expenses of our defense, if a claim is made against us arising out of the services we perform for you.
If you and the client both sign this agreement before you shoot, I think it covers you. But just to be sure I asked Joel what he thought about your question. Here is his analysis:
It seems pretty far fetched to me. I am a former prosecutor. I never saw this scenario in real life. Movies, yes. Real life? No. If there was a burglar who wanted to burgle a home and it was worth the effort to hunt down the floor plans online then that home is going to be a BIG home with all kinds of security and the burglar is going after a big score and it would therefore be worth the effort to go to the department of buildings and get the plans there which will be way more accurate than online plans.
And besides, how are you going to pin this on the real estate agent or the photographer? The realtor is the agent of the seller. The photographer is hired by the agent. They are just doing what the seller wants them to do. And what the buyer wanted too because the buyer bought the home after seeing the photos and the plans.
And how would you ever find out (short of a full confession by the burglar) that the plans or photos aided in the burglary, and even if that did happen, how can that ripen into liability for the agent and the photographer since it’s not the plans that harmed the buyer, it’s the burglar stealing the buyer (now homeoner’s) stuff.
And yes, if the agent did something that resulted in liability for the photographer the contract requires the agent to indemnify the photographer. But in reality does it ever get that far? Not under this highly unlikely scenario.
Are there any likely scenarios where the agent would be required to indemnify a photographer? The one that the agreement contemplates is where the agent mistakenly tells the photographer to go to the wrong address and he is subsequently sued for trespass or invasion of privacy because he walks into an unlocked home and starts to take photos and something bad happens (e.g. the photographer breaks an expensive vase, catches someone in the act of doing something distasteful and the photos get into the wrong hands, etc.).