Surveillance and the Law Maintaining Safety While Respecting Privacy

Secure.  The word has many meanings.  According to Google definitions it can mean “to fix or attach something to something else.  It can mean to protect against threats or make safe.  Or it can mean to feel free from fear or anxiety.”  Perhaps that feeling of security is the single most important thing we can to feel in our homes.

Security is a major issue for condominium communities today.  The choice of a condominium or other communities overseen by HOAs may be made over a private home based on the desire of the potential purchaser for additional security or to have peace of mind that security concerns are being addressed on a community-wide basis.  An article that appeared in CONDO.ca on-line states that “security was the number 1 concern among people looking to purchase a condominium.” 

The state of surveillance and security has come a long way over the past few decades.  Where security issues used to rest on the employment of security personnel and perimeter fencing, today’s security arrangements are more hi-tech and complex.  Along with technology, has come litigation and legislation.

Walking a High Wire

While board members of condominium associations and HOAs are as concerned with their security as the rest of their fellow condominium members, they have to balance the legal issues that govern both the successful security apparatus of the community and the potential liabilities of the association.  

“The right to privacy has to be respected,” says Frank Flynn, an attorney and principal with the Flynn Law Group in Boston, Massachusetts.  Privacy rights are defined on a state by state basis.  “In Massachusetts,” Flynn explains, “the right to privacy is defined as an expectation of privacy in an apartment or condominium unit.”  In addition to privacy laws there are federal eavesdropping statutes that must be taken into account when considering a surveillance system.  “Under federal wiretapping laws, the condominium association would be in violation if they recorded somebody’s voice without their consent.  But they can video the common areas and that can be done surreptitiously, provided they don’t record sound, silent movies only.”  Regardless, Flynn suggests that condominium trusts should also consult their attorneys about what state law requires.     

Howard Goldman, a founding partner of the law firm Goldman & Pease, located in Needham, Massachusetts, says, “It is reasonable that the trustees would want to take measures to protect the unit owners from clearly foreseeable criminal activity, including the installation of security cameras and monitor when individuals enter and exit the building.”  

He cautions, though, about cameras installed within individual units that capture images of common areas.  “The law is murky when it comes to another unit owner making the unilateral decision to install a security camera and is the only unit owner with access to the same.  A unit owner is unlikely to have the right, pursuant to the condominium documents, to install a camera that is located in the common area without support from the trustees.”  Under all circumstances, though, audio recordings are prohibited.   

Increased Liability?

What are the long-range effects of camera surveillance on the condominium corporation and the board of directors?  Do sophisticated surveillance systems increase liability? Having a sophisticated surveillance system “can be a two-edged sword,” says Flynn.  “Having cameras that record what happens in the common areas, let’s say the parking lot, will protect you against alleged things that didn’t happen.  There’s the ability to have evidence of what really happened, say someone claiming to fall or injure themselves when they didn’t.  Is it bad to have video of something that really happened? No.  If it documents injury, the injured party has proof, but it also guards against exaggerated claims.”

One overarching question is whether condominium associations have a responsibility to provide security at all, even to the point of whether the word ‘security’ should be used in the same phrase as the word ‘camera’.  Goldman says, “Once a policy is in place with regard to security cameras, the condominium association has a duty to enforce the policy. This is because the condominium association, in installing the cameras, has created the perception that it is providing security services that a unit owner may rely upon.  To protect itself, the condominium’s cameras must be properly maintained and their contents reviewed on a regular basis.”

On the matter of personal liability for condo board members, Flynn says, “They can have liability if they exceed their reasonable business judgement.  In Massachusetts there is a rule of reasonable business judgement.  As long as a trustee uses it, then it should protect them.  Say a roof needs to be replaced and the trustees chose to ignore a report stating as such and they don’t fix it.  Then there is a leak causing thousands of dollars in damages.  They could be liable because they didn’t follow the advice of the report, therefore not demonstrating reasonable business judgement.”  

Privacy Always Trumps Security

Where can an association record and where not?  Some of this may seem obvious.  As discussed above, cameras can be placed in common areas.  But occasionally that can become problematic.  Flynn describes a situation that occurred with one of his clients.  “We represent a condominium where there is a roof deck.  The roof deck was supposed to be for the exclusive use of the penthouse owner.  But there were stairs that lead to the deck and the condominium documents were written incorrectly and said the deck was open to everyone.  

“Next to the roof deck was the skylight to the master bedroom in the penthouse unit.  Let’s say the condominium association had placed a security camera on the roof deck as a security measure in a common area.  The camera would look directly into the penthouse master bedroom.  That would be inappropriate and could result in a big lawsuit.  You must be careful of not violating privacy.  In the end we worked out an amendment to change the document.”

Dummy Cameras

No, no, no!  Universally, the one thing attorneys say is stay away from ‘dummy cameras’.  “If you have a so called dummy camera and you are trying to frighten people but it’s not working, you are giving people a false sense of security and if it’s truly a dummy camera and it’s not connected to anything that’s taking on a job poorly—security—it will get you in trouble,” says  Goldman.

Key Fobs and Key Tracking Cards

In addition to high-quality video cameras with or without security personnel, one of the most popular innovations in security and surveillance today are Key Fobs and Security Card Access systems.  “I’m a big fan of key fobs and key cards,” says Flynn, “because they actually give a report on where that fob or card went.  Sometimes it’s useful in cases where we are trying to figure out who has been coming and going to a particular unit with regards to security.  If you have a unit owner who loaned out their key fob to someone and it’s being used frequently, maybe there is drug dealing going on, you can track the use of it.  Regular keys don’t provide that tracking.  It’s an additional way of obtaining information.  If you have cameras along with key fobs or key cards you can see exactly who it is.”

Keep or Toss?

So, how long do you keep the videos — and who gets to see them?

Two legal issues that crop up relative to the use of video cameras today are how long should recordings be kept and who should have access to them.  Many video security systems are set up to record over existing footage every thirty days.  The decision on how long to keep copies of the recordings should take into consideration state statutes governing limitations on liability.  “In Massachusetts, the statute of limitations on personal injury cases under negligence is three years for torts.  For breach of contract, it is six years,” explains Flynn.  “For unfair deception, which management companies are subject to, it is four years.”  Condominium boards and HOAs must consider this in determining their policy for record retention.  

Goldman took a slightly different view.  “If there is a level of sophistication you would want to consult with an expert in security,” he says.  “But it seems to me it’s a relatively short expense to have some backup capability.  That requires some level of maintenance by someone with some ‘tech savvy’.  The negligence standard is what a reasonable person would do under foreseeable risks in light of the circumstances.  So, in a larger development with lots of public access, there is more of a burden to do it right, which is to have the backup.  If you are a much smaller condo with limited resources, you have to look at the cost.  It’s really a cost-benefit analysis.”  

In terms of access to the recordings, attorneys seem to be pretty unanimous.  The management company should have access and the board should have access, along with law enforcement officials.  As to the condominium members the opinion is that they probably should not have open access to security recordings.  They should have access when a recording applies to them and with a proper process of requesting a specific portion of the recordings and why.

Some Low-Tech Alternatives

Condominium and HOA boards should take advantage of two resources that are readily available and at no charge; the local police with regard to criminal activity and your insurance agent for property damage and loss prevention with regard to the property that might not rise to the level of a criminal investigation.  The police are there for personal safety and the insurance people are there for the property issues.  Use them as an available and free resource.  They will be happy to try to help you.

Goldman had the following advice for condominium and HOA boards:  “As new security technologies are created and their use across the country becomes more prevalent, condominium associations should be sure to understand the ramifications involved with providing security to unit owners and visitors.  Through the adoption of by-laws, condominium associations have wide latitude to allow the installation of security cameras in the common areas, but must be sure to maintain them.”                

A.J. Sidransky is a staff writer and reporter for New England Condominium. 

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