SURVEILLANCE, SECURITY AND PRIVACY AN OVERVIEW OF PRACTICAL AND LEGAL CONSIDERATIONS FOR COMMUNITY ASSOCIATIONS

Evan M. Alexander, Esq. *

            Every person desires to have a safe and secure place to call home regardless of whether you live in an attached condominium, site condominium or subdivision. Choosing a home in a low crime area helps to ease worries of safety and security; however, crime occurs in all neighborhoods. High quality video security systems are readily available and may help to give owners an added sense of safety and security. Modern systems even enable an owner to monitor their property remotely in real-time from a smart phone.

Competing with this concept of security is a person’s reasonable expectation of privacy. Community associations that are dealing with issues related to surveillance and security systems must consider what rights and obligations they have under relevant laws, the association’s governing documents, the general safety and security of the community, individual owner’s safety, security and privacy interests, and the potential that owners may think the association is taking on the responsibility of maintaining community security if the association decides to install its own systems.

General Legal Considerations

State and Federal laws must be considered before addressing surveillance and security cameras under an association’s governing documents. In Michigan, the relevant statute prohibits a person from installing, placing or using any device in any private place that observes, records, transmits, photographs or eavesdrops without the consent of the person(s) that have a right and expectation of privacy in that place 1. The statute defines a private place as “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or a substantial group of the public has access.” 2 The determination of whether a part of a community is a “private place” will be a case by case analysis. For instance, in a high-rise building, a person probably doesn’t have a reasonable expectation of privacy in the building’s lobby; however, that person may have a reasonable expectation of privacy in a hallway that serves only one or two Units. In a detached condominium or neighborhood a person probably doesn’t have a reasonable expectation of privacy in their driveway; however, they probably do have a reasonable expectation of privacy in a fenced patio area.

Federally, the laws regulating individual use of security cameras are relatively sparse; however, individuals have an overriding constitutional right to privacy. The individual’s right to privacy must be coupled with a reasonable expectation of privacy. For example, a person would reasonably expect that things said or done in the comfort of their own home will remain private. On the other hand, there is probably not a reasonable expectation of privacy when having a conversation with a friend at a community clubhouse.

Regardless of whether the surveillance or security system is being installed by an individual owner or the association, the cameras cannot be placed in a manner that invades upon an individual’s reasonable expectation of privacy. The cameras cannot be used to view into other owner’s residences or private areas (ex. private pools, patios, fenced areas, etc.).

Owner Installed Surveillance and Security Systems

In the condominium context, Section 47 of the Michigan Condominium Act provides in relevant part that “a co-owner shall not do anything which would change the exterior appearance of a condominium unit or of any other portion of the condominium project except to the extent and subject to the conditions as the condominium documents may specficy.”3 The vast majority of condominium bylaws provide the association with the exclusive right to control exterior appearances and maintain the aesthetics of the community.

In attached condominiums, the exterior of the buildings are typically general common elements that are under the control of the association rather than individual co-owners. Co-owners are generally not permitted to make any modifications to the general common elements without the association’s express written approval. Although the exterior of individual residences in a site condominium are typically owned by the individual and are not common elements, the association will still generally have architectural and aesthetic approval rights. Likewise, many subdivision declarations provide the association with control over exterior appearances and modifications, even though the individual residences are owned by the individual. A review of your association’s relevant governing documents will help guide the board in determining the basic rights of the association to control exterior attachments such as security and surveillance cameras.

Whenever an association is making a determination on the approval of an exterior modification or attachment, the decision must be reasonable. For example, history of crime in the area, the field of view of the camera and the privacy of other residents and owners are reasonable considerations when making a determination. Each association is different and individual circumstances may dictate additional factors which are reasonable. Associations that are considering permitting individual owner installations of security cameras should adopt a comprehensive policy which addresses the uniqueness of the community and ensure the privacy of all residents. Associations must also consider whether the installation would necessitate drilling holes through common property for wiring or otherwise have the potential to cause damage. As a part of the comprehensive policy, associations should also require the owner to enter into a modification and alteration agreement to clarify that the owner is responsible for the costs of installation, maintenance, damage, removal of the system and any potential liability that may arise.

Association Installed Surveillance and Security Systems

Additional considerations are relevant when an association is contemplating the installation of a surveillance or security system. Does the community have a history of criminal activity which may be reduced by an installation? How often will the recordings be reviewed and who will be responsible for the review? Will the Board use the cameras to enforce provisions of the governing documents against owners? Where will the cameras be placed?

Each association will need to consider the unique characteristics of the community to determine whether a security system is necessary or advisable. Each community should consider the issues that it has faced in the past and determine whether a security system would help to address the problems. In a community located in a higher crime area, it may make sense to install cameras which monitor activity in the common parking lot. In an apartment style condominium it may make sense to have cameras installed at building entrances. If the community has been experiencing issues with unauthorized access to common facilities (pools, exercise rooms, etc.) it may make sense to install a camera that monitors the entrance to the facilities.

If an association does determine that installing a security system would be beneficial to the community or address a specific concern, the association should also make clear to owners the purpose of the system and that the association is not taking responsibility for the security of the community. Security systems may be helpful to assist the Association in identifying specific violations, deter crime and to record information that may assist law enforcement investigating a crime.

Conclusion

Associations and owners have a valid interest in the safety and security of their communities and individual homes. That interest is coupled with individual’s right of privacy. Associations that are considering permitting owners to install their own surveillance or security systems must take into account the characteristics of the community and the need for such systems. If it is determined that owners will be allowed to install surveillance or security systems, specific guidelines should be outlined in a policy or rule which address the location of cameras, approval requirements, maintenance requirements, permissible and prohibited uses and potentially other factors. Associations should consult with legal counsel to draft an appropriate and comprehensive set of guidelines.

Likewise, if an association is considering the installation of a community surveillance or security system, it is important to design the system to address specific concerns that may be unique to the community. Community systems should be used to address specific safety and security concerns rather than to enforce restrictions.

Governing documents vary and legal counsel should be contacted to determine each association’s ability to address surveillance and security cameras or enact rules and regulations.

  1. MCL 750.539d
  2. MCL 750.539a
  3. MCL 559.147

* Evan M. Alexander is a Michigan Condominium Attorney and an associate at Makower Abbate Guerra Wegner Vollmer PLLC. Mr. Alexander focuses his practice primarily in the areas of Michigan Condominium Association and Michigan Homeowner Association law. Mr. Alexander is a member of the Young Lawyers section of the State Bar of Michigan.

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