Where does your right to privacy begin and end? In the real estate business those rights are getting eroded dramatically by modern technologies and the business of the Internet.
The essence of private property is "privacy." The home is a sanctuary. The first right of privacy of the home was originally recognized in the 3rd Amendment to the Constitution. Courts have since extended our right to privacy in many areas: including procreation, abortion, family patterns, education et al. However the right to privacy in one's home dates back to old English law where the "Englishman's home is his castle."
Real estate agents are constantly pushing the envelope with the "more is better" philosophy of marketing. This means that the home you are interested in selling or buying will routinely be published on the Internet by many websites including broker website, mlslistings.com, realtor.com, Zillow, Trulia, Movoto, Craigslist, Facebook, Twitter and the property's own website, just to name a handful.
Enhancements to the data entered on the multiple listing service often means that there are 20 pictures of the property available for viewing before you even go see the home. They may also show virtual tours of the entire home, photos of each room, hallways, garden areas, etc. These pictures may explicitly or implicitly show floor plans of the entire home. Interestingly, sellers, since they have moved or soon will be gone, really don't care much if the world has the floor plan and design of the home on the Internet. They are just following the real estate agent's lead, where common practice has recently been to plaster the pictures and data in any place that you think a buyer might potentially look.
Invasion of privacy issues abound. Do you really want your floor plan and a virtual tour of your home available to anyone surfing the Internet? Buyers and sellers need to be aware that once this data goes out on the various services, it does not get erased. Do real estate agents have a duty to protect the privacy of their clients? Are clients really aware of the degree and permanency of marketing materials? Is this type of marketing desirable or at all necessary to sell the typical Bay Area home?
Risks are many. Pictures, virtual tours and plans could be utilized by the criminal element to invade your property. The exact layout of your home could be valuable to a criminal with the intent to burglarize or commit other crimes on your property. A criminal can also view items that would be valuable to steal: large screen TVs, computer systems, furnishings, art and the like. Improvements made by the homeowner that perhaps are not to code or done without permits would also be visible to neighbors and city zoning officials. Courts have often ruled that once you give up your right to privacy, then you lose it. Homeowners may be inviting the world into their home at their peril and the peril of future owners. Do you really want everyone to know you left the toilet seat up? This really happens.
Technology presents a new challenge for privacy. Homemade drones that can shoot high-definition video from low elevations can give amazing perspectives on home and land. This could become the new standard for marketing for all property. Drone technology previously used exclusively for military activities is now going to be available to individuals and private companies. The issues raised by this type of activity are troublesome for privacy. What privacy is there if your neighbor can take high-definition video of your yard and at low-elevation angles can even see inside your home? While this may seem extreme, recent example of private promoters of this technology to the real estate community have shown samples, and while giving quite stunning pictures of a property, they coincidentally show all the properties nearby in the same detail. Do we really want our neighbors to see your junk pile or your skimpy bathing suit?
Recently on the email listserve for one Palo Alto neighborhood there was a discussion about having cameras in the streets to help identify criminals who have caused the rash of burglaries in Palo Alto. When inquiries were made to the police department, they indicated that in the past there were complaints that cameras in public places were an invasion of privacy and too much like "Big Brother." Odd that we would have such sensitivity to privacy in a public place where we have no right to privacy, yet give it all away when it comes to our home, where we have a legal right to privacy, unless to open the door to the public.
J. Robert Taylor, J. D., a real estate attorney and broker for more than 20 years, has served as an expert witness and mediator and is on the judicial arbitration panel for Santa Clara County Superior Court. Send questions to Taylor c/o Palo Alto Weekly, P.O. Box 1610, Palo Alto, CA, or via email at email@example.com.