Notes from the MAR Legal Hotline

Michael McDonagh, MAR General Counsel

Ashley Stolba, MAR Associate Counsel  

Justin Davidson, MAR Staff Attorney

January 2015

Q.         I have listed a property and the seller has outfitted his home with webcams. He says it is to keep an eye on the property, but I think it is more about listening to conversations and seeing who is viewing the house. Must I disclose to potential buyers and their agents that they are being videotaped?

A.         Questions regarding the use of webcams or “nanny cams” are becoming more prevalent throughout the nation. Increasingly, sellers worry about safety in their home and wish to monitor showings with these devices. Others may view the use of these cameras as a tactic to give them an edge on negotiations, as they will get a sense of the buyer’s view of the home. If your seller wishes to use a webcam, it is important to have a discussion regarding the legality of these devices when taking the listing.

If the webcam has a feature that streams or records audio, the seller must obtain consent from all of the individuals being recorded in advance of the recording. Massachusetts has some of the strictest wiretapping laws in the country; it is one of the few states that requires all parties involved to give consent. Therefore, it is illegal to record conversations of prospective buyers (and their agents) without their permission.

If the webcam does not stream or record audio, or the seller has disabled this feature, the law is not as explicit. Neither Massachusetts nor federal wiretapping laws prohibit video surveillance or require consent from the parties. It is strongly encouraged, however, that if a seller is using a webcam it should be clearly disclosed to all prospective purchasers and their agents. If you represent a buyer, you should consider asking listing agents if there is a webcam in use at the showing.

Q:        As alternative energy sources such as solar panels and wind systems become more common, the question as to whether they are subject to Massachusetts property taxes has been asked. Are these systems exempt?

A:        The Massachusetts Appellate Tax Board recently ruled that solar and wind-powered systems are exempt from property taxes, so long as the system generate hear or energy, and it services property that is subject to property taxes. This ruling stems from a case out of Westborough, Massachusetts where an 845-panel solar system on five acres was assessed for property taxes of nearly $40,000 over a two-year span. The abatements the owner sought were denied, and he appealed to the state’s appellate tax board, which ruled that these systems were in fact exempt, on December 4, 2014.

 Q:       A home that I have listed has been found to have an oil leak in the basement due to a faulty fuel line from the tank to the furnace.  Environmental inspection professionals have been called but have not come out yet to do an assessment.  The seller is adamant that we not disclose this to prospective buyers since they plan to clean it up before a closing is scheduled and they don’t want to scare buyers away.  What should I do?

A:         Pursuant to the Massachusetts Consumer Protection Act (Chapter 93A), you have an affirmative duty to disclose any known material defects about a property to prospective buyers.  Although the oil contamination issue your seller facing is not an uncommon one, it could adversely affect a prospective purchaser’s decision to buy the home. In fact, the issue is so common that state environmental rules now require all new delivery lines to be encased in a non-metallic protective sleeve when installed. 

Your seller is taking the right steps by contacting qualified professionals to evaluate the problem. This does not, however, negate your duty as a real estate professional to disclose the issue.

For more information, the state’s Department of Environmental Protection has put together a great brochure on the issue of heating oil fuel lines.  It is available at http://www.mass.gov/eea/docs/dep/cleanup/deline.pdf.