HOA Law Blog
Theft! Whether it occurs in the common area lobby, hallway, parking area, or on an owner’s porch, it is on the rise. Many associations are installing or updating surveillance cameras in response to this criminal behavior. Cameras may not stop all thievery, but they can still help to prove criminal damages or that a theft has occurred. Surveillance cameras can be valuable tools for insurance purposes, to deter would-be criminals, and to provide law enforcement with proof so they can hold criminals accountable for their behavior. Below is a checklist of key points for boards of directors to consider when making surveillance camera policies. Every association with cameras should adopt these guidelines.
Affirm that Association Cameras Do Not Provide Security – Unless an association’s governing documents state otherwise – and they never should – associations do not generally provide security to their residents and should take care in their communications, policies, and actions to avoid creating a duty (and liability) to provide security to residents. This is important so that residents do not rely on such representations for security. Associations should state that the surveillance cameras have a limited purpose and are for the benefit of the association. That is, the cameras are placed to provide evidence of association property damage or theft, for the board to review after an incident has occurred. Associations should also provide a disclaimer to advise residents of limited video storage, the overwriting of older footage, and the fact that cameras may not be actively monitored with a live viewer. The association should make it explicit in policy that residents are responsible for protecting themselves and their own personal property. This is important so that residents do not rely on the association’s cameras for such footage, which may not exist.
Address Privacy Issues – One of the major liability concerns regarding the installation of cameras is, of course, the issue of privacy. State law does not permit the recording of others without their consent when there is a reasonable expectation of privacy. Typically, there is no reasonable expectation of privacy in the common areas, such as a garage, lobby, or shared hallway, since anyone can come and go through these areas. However, there is a likely expectation of privacy in the interior of someone’s home, a backyard, or a restroom.
To minimize claims that a resident’s privacy was violated, associations should post signs regarding the recording of activities in certain areas, send a notice to residents about any cameras that will be installed or that have been installed, and consult with legal counsel about questionable areas where cameras may be installed. The view of a camera should be limited to the extent possible to minimize privacy claims. Associations may require an owner to go through an approval process for camera installation. During this process, the association may require a certain view as a condition of the approval.
Approval for Camera Placement in Common Area, Exclusive Use Common Area, and Owners’ Homes – An association’s board of directors or architectural committee, if applicable, should have the sole authority to decide on the installation of cameras in the common area, since it is the board or committee that makes decisions regarding the common area. Of course, such decisions are subject to compliance with the association’s governing documents or a variance regarding the same. Owners that wish to install a camera in an exclusive use common area or on the exterior of a door, unit, or home should first seek written association approval. Such approval can be made, for example, via an architectural application, since the camera might damage the underlying surfaces of a structure during installation (brackets, holes, etc.) that are considered common area and that affect the exterior appearance of a home, its watertight condition, or potential impairment of warranty protections. Prior approval will enable the association to transfer liability for common area damage and maintenance to the resident through an agreement and, when possible, a recorded covenant that runs with the land. Associations should be consistent in their granting/denying of owner camera applications, including the locations of such cameras, to avoid claims of disparate treatment, unless other circumstances exist that have caused an association to change its position. These can include, without limitation, variance approvals for specific purposes.
Consider Costs and Funding – With association-installed cameras, an association will need to consider how it will fund the installation. Unless camera installation was included in the current year’s fiscal budget, an association may have to raise funds for the costs through a special assessment, or even as an emergency assessment. An emergency assessment may be possible based on recent criminal activity at the association or in its geographical neighborhood.
Control Footage Access – An association will need to consider how footage can be accessed and for how long it is preserved. They may want to limit footage review to the board or management, and only provide footage to residents with a court subpoena or a request from the police, in order to protect, to the extent possible, the privacy of its residents and to prevent overly burdensome, numerous, or unreasonable requests. Associations should assign a board member, management staff, or a technician to handle the preservation of footage and requests for footage. The association should consider a written footage retention policy to be included in the overall surveillance camera policy.
Having an effective camera policy is the easiest way to address the considerations discussed above. Due to the complex emotional and legal issues surrounding surveillance cameras, the association should work with its legal counsel to develop camera policies that best address the needs of the association while minimizing its risk and liability.