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New Homeowner Claims a Property Video Violates His Privacy

March 13th, 2017

Adam in Virginia says:

Recently a broker I work for, we can call him Fred, received a letter from an attorney. In the letter it stated that the current owner of a large estate that Fred had sold in November of 2016 had seen a marketing video put out by Fred’s firm. This video contained two exterior shots of his now owned property. He then threatened that if the video was not removed from the web, he was going to sue for privacy infringement.

Fred, the broker, talked to me about the situation and we both agree that we can’t think of any legal grounds that the current owner would have to request us to do this. That being said, unfortunately we also know that this person has very deep pockets and seemingly nothing better to do. If we were to take it to court, he would very likely outspend us. We have decided to go ahead and take down the video to appease him.

I was curious if you or any of your readers had heard of such a situation or knew of any legal precedent for such a matter.

Your story is funny in a way because any property that has been on the market recently is likely to have both interior and exterior photos on Zillow. Zillow routinely keeps the listing photos after a listing goes inactive. A home we sold three years ago has my listing photos and those of another listing agent from a sale after ours. So your property owner should also go after Zillow.

I’m not a lawyer so I suggest that you consider my comments and readers comments just personal opinions. Contact someone like Joel Rothman to discuss this issue if you expect legal action. Joel is an expert in this area.

When photos are taken for marketing purposes the current owner gives permission and it doesn’t seem to me that future owners can reasonably have any expectation of control over them. Also, if the photos in question were taken from a public street they can’t violate anyone’s privacy.

Has anyone else had this issue come up?

 

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12 Responses to “New Homeowner Claims a Property Video Violates His Privacy”

  • Oddly enough, it comes up frequently. Probably once every other month. I leave videos online as they continually provide leads to my agents. I’ve had agents receive leads from videos that are literally 10 years old.

    I’ve never had anyone threaten to sue, and I always tell people I only can remove videos I have control over, which aren’t always every instance. But I just remove them, no questions asked and everyone is happy.

  • This happened to me last year. Being in the Greater Washington DC area and many REALTORS have listing and buyers that “work for the government agencies” with various type and levels of security clearances, many of them do not want anyone seeing the home they bought for what ever reason. My broker (I am a Keller Williams REALTOR also) was contacted by a buyer. He demanded all photos and videos be taken off of the internet since he wanted no one to see his home for security reasons. We did, but Zillow, Truilia, REALTOR.com MRIS will always have some footprint of the photos floating out there. You buy a house and hopefully it is marketed to sell with photos and video, the photos and videos are out there in cyber space, only way around this is to buy a new construction home that the builder will probably not photograph and more then likely video.

    It happens, and those type of buyers or sellers should understand that in today’s market and the internet, nothing is ever really gone.
    Side note – this is why in the Greater DC area, many seller do NOT want Matterport since it shows too much of their home and where things are and how the house flows.

  • We have this happen once and a while. Since it doesn’t effect me to take down the images, I do so. However, it should be noted that Google already has photos of a majority of homes view-able from the street and satellite photos of all the rest. So it really is a joke that people would demand the photos be removed.

  • Larry, a very interesting post. I have not run into it but since most of the properties I shoot start at above $1.5 mil, I imagine one day I will. This is a great referral to Joel. Thanks.

  • All of the attorneys that I have heard speak on the subject of privacy and “property rights” say that any subject visible from a publicly accessible space is fair game. There was a case where a “fine art” photographer was taking pictures of people in a high rise buildings from a high rise across the street where the people were in varies states of undress and engaged in “adult” activities and a judge acquitted him of invasion of privacy charges and allowed him to sell prints. The defense was that if those people didn’t want pictures taken of them they could have closed their drapes/blinds. There was another case where the picture of some iconic homes in San Francisco was used by a firm advertising foreclosure help and the owner of one of the homes sued claiming defamation. The judge found for the defendant since the plaintiff was not identified in the ad and there were several homes in the photo.

    I think that one of the cases where taking photos in a public space can be an issue is for national security reasons. If I go over to a local Air Force base and poke my telephoto lens at the goings on from outside the fence, it might be considered a violation. Wasn’t there some exclusion zone for Obama in locations such as airports where taking pictures was not allowed without specific permission?

    “Fred” probably doesn’t have a problem, but the only way to fight (blood sucking) lawyers is with other (blood sucking) lawyers, so a little consultation might be a good thing and not much money for the peace of mind.

  • I agree with Fred. You have to pick your battles. Just do what is within your control. Let them know you have done what is within your control. Let them know what you don’t have control over. Be respectful and move on.

    We can often be placed at a disadvantage. Life is not fair. Some things are not worth our blood and tears. We are not losing money in these situations. We are in a business not one of fighting for social justice etc.

    I have run into this more than once. The most memorable was once I was shooting a home from the street for a builder. He wanted it for an update for his site. He built it. I had previously photographed it prior to a detached garage being completed. A man approached me from the house and pointed his finger in my face demanding to know who know who my boss was (he was a prominent surgeon) and a jerk. I asked him why. He said he did not want pictures of his home on the internet and he was going to sue me. I paused and thought for a moment and said… I was working for the County Assessors office and we are permitted to and required to photograph homes from the street. I asked if his property was accurately described on the assessment page. Then I told him to expect and updated property tax assessment from our office and to have a good day today because when he got the update he would be having a very bad day.

  • It’s important that we foster good relationships within out markets. The best decision and course of action was obvious and taken.

    However, if the photos were created prior to the new owner’s purchase, he has no legal standing.

  • These people then need to go after their county GIS sites. At least in the state of Kansas, you can look up any address on GIS and see (among other things) the current owner’s name, property valuation and (gasp!) photos taken by the county appraiser.

    I can appreciate the sentiment of picking your battles, but some people obviously have no clue about what is considered an invasion of privacy.

  • Larry, thanks for the mention. I agree with your assessment and Adam’s too.  But let’s look at this closely.

    There is no common law right to privacy for photos of the exterior of a house. Why? Because houses are exposed on the outside to the public so their exteriors are inherently not private.

    There might be a contract right between the broker and the owner to take the photos down, and savvy sellers might write that into a standard listing agreement and then assign that right to the buyer post purchase or make it a term of the purchase contract.  But that is a very sophisticated approach and probably rare.

    But none of that would impact the photog unless the photog has signed an agreement with the seller or broker that obligates the photog to take down photos post purchase.

    In my experience laypeople and many lawyers misunderstand privacy rights. Privacy rights of the fundamental or constitutional kind protect us from GOVERNMENT intrusions, not complaints like this one between private parties.

    And while there are civil claims for privacy violations in many states, the violation generally needs to be incredibly damaging causing extreme emotional distress to be actionable.

    Now, if the photos were interior pics then that opens up other possibilities like mistakenly shooting the security alarm code tacked to the wall or the seller’s B&D equipment in the bedroom, etc. 

    Also, it’s not always true that Zillow and the rest like them have the right to keep photos up.  It depends on their agreement with the MLS. And many MLSs require Zillow to take down pics post closing but Zillow routinely violates that requirement.

    Thanks again for the mention.

  • I’ve had this happen twice. I live in a small town and opted to keep the peace and take it down. I can tell you the guy went about it all wrong. Had I received that letter with a threat I would tell him to bring it! That’s not cool and that’s not how you handle things.

  • Maybe if more folks would just stand up to these “SnowFlakes” and flip them the bird, then we would not have all this BS to deal with

    Just saying

  • This comes up for me as well. Not as often as it does Fred Light but I don’t shoot nearly as many as the Professor. It’s probably happened to me 7 or 8 times over the years. I’ll admit its super annoying, especially when its got a big view count but I’ve always removed them anyway. Unfortunately, adding insult to injury; in most cases they aren’t polite when they ask. The gloves are already on. I guess I think of it as a case of “Do unto others…” I doubt I would want my house out there if I had control of it coming down when the sale is over. It would have to be a really important video to me for me to put up a big fight over it… but I’ll never say never.

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