By Nancy I. Sidoruk, Esq.
An association has a duty similar to that of a landlord to take reasonable precautions to protect residents from foreseeable crime in the common areas. Associations are generally not liable for criminal acts committed by third parties but prior instances of crime or other relevant factors can make it reasonably foreseeable that future criminal acts might occur. While failure to take precautions to prevent crime can under certain circumstances lead to liability for an association, some actions designed to address crime also have the potential to increase the risk of liability. One of the steps that may create liability if handled improperly is the installation and use of surveillance cameras.
Location is important. An association should only use cameras in portions of the common area where residents have no reasonable expectation of privacy (e.g., not in restrooms, showers). Signage should be clearly posted in areas under surveillance so persons in that area are aware of the presence of cameras.
Policies for use of the cameras should be considered. Prior to installing surveillance cameras, an association should adopt a comprehensive policy regarding equipment use to prevent claims of their improper use and to minimize potential liability. Surveillance camera policies should include information on how long data is kept, and who, when or how often it will be reviewed. If it is a board’s intention to use the camera as part of a monitored closed circuit TV system, notice should be given that the camera is under periodic but not constant monitoring.
If the device will be monitored by management personnel or even the board, it is prudent to adopt and follow a policy where footage is only reviewed after an incident is reported. This can help offset claims that a board or manager is using the system to spy on neighbors.
The notices to the residents and owners should also include warnings that the surveillance cameras cannot guarantee personal safety and that individuals are responsible for the safety of themselves and their property. The use of cameras can create additional liability for an association, if residents and owners misconstrue the cameras as a guarantee or assumption of responsibility by the association of the residents’ and owners’ safety and security. An association should notify residents and owners on a periodic basis regarding the use of surveillance cameras.
What if there’s an incident? Will an association have to release surveillance camera data? Possibly, yes, in certain circumstances, an association may be drawn into criminal or civil proceedings should something happen which has or may have been recorded by a surveillance camera.
This is just an overview of some issues involved with surveillance cameras. For more on how courts evaluate duties of landowners to take steps to secure common areas against foreseeable criminal acts of third parties, see Frances T. v. Village Green Owners Association, and be sure to contact legal counsel regarding specific needs and concerns.