The Lockbox: Intrusion Upon Seclusion?

James L. Goldsmith, Esquire

"Intrusion upon seclusion" is more than a catchy title. It is also the title of the legal claim that one person may bring against another based upon an invasion of privacy.

Prospective buyers and their agents all over Pennsylvania gain access to listed homes by way of the familiar lockbox. That these strangers to the seller have access to the place where an owner conducts her private affairs is rarely given a second thought. Most buyers are quite respectful and their agents are present to keep the snooping within bounds though there are few disasters such as where a salesperson has given their code or key to a buyer who alone goes through the home!

To what extent may the buyer and agent look through the home? Imagine that the buyer and seller are discussing making an offer and are calculating the dates by which the mortgage application must be made, inspections concluded, and when settlement will take place. The buyer sees a calendar on a kitchen desk and lifts the top page to see the following month. There he notes that the seller has written this entry: "settlement on our new home." The buyer and agent conclude that the seller must be anxious to sell his present home and figure that with the tight market and additional pressure, the seller just might consider a very low offer.

Was leafing through the calendar an unlawful intrusion into the private life of the seller? I can't answer that with certainty. What I can state with certainty is that Pennsylvania recognizes a cause of action (the legal name for the right to bring a lawsuit) for unlawful intrusion upon seclusion. Having the right to bring the claim certainly doesn't mean an owner will win. All of the elements of the cause of action would have to be proved by the evidence. Win or lose, isn't it bad enough that your client's act of opening a calendar, a drawer, or a door could lead to a lawsuit?

There are four types of claims based upon the invasion of privacy. One of them is "intrusion upon seclusion" which is established if someone intentionally intrudes, physically or otherwise, upon the owner's solitude, seclusion or private affairs. The intrusion must be such that the reasonable person would be highly offended.

I doubt that a jury would conclude that a reasonable person would be highly offended by someone leafing through a calendar to note on what weekday a numbered date will fall. On the other hand, if it is evident that the calendar is used to mark private and personal events, then leafing through it may be beyond the bounds of decency. Opening a kitchen drawer to observe its construction and hardware may be reasonable, whereas opening a drawer in a nightstand or desk is beyond those bounds.

Drawing a bright line between offensive and acceptable conduct is hard to do. Two of my colleagues who assist me in answering the PAR Legal HotLine and who also represent real estate licensees across the state engaged in a debate on this very subject. One and a half of us thought that leafing through a wall calendar was an improper invasion of privacy and one and a half of us felt that it was reasonable!

Whether opening a desk drawer will lead to a civil suit is not the only consideration. The Real Estate Commission may find that the conduct violates the Prohibited Acts section of the Real Estate Licensing and Registration Act and may impose a fine. If the invasion of privacy is so extreme as to be shocking, it would likely lead to the revocation of a license!

Believe it or not I once defended a REALTOR® in a disciplinary case where it was claimed that she allowed her buyer's five-year old son to ride the seller's son's tricycle around the garage while a home inspection was being conducted. A neighbor of the owner reported this incident to the owner who in turn made a complaint to the Real Estate Commission! The Commonwealth's prosecutors felt that this invasion was the result of the agent's "incompetence" and included this among the several other counts charged against the licensee.

The other side of the coin is that sellers should "stage" their homes for anticipated visits by strangers. Mail, bills, credit card statements and other private information should be filed away in an appropriate location that everyone would recognize as "off limits." The fact that a checkbook is found on a table top, however, does not give right to anyone else to open it!

Whether an invasion of privacy occurs is based upon a "reasonable person" standard. My advice is to err on the side of being more than reasonably cautious when guiding your buyers through another's property.