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Surveillance Cameras: Does their use potentially incur liability to the owner?

Started by BillH10 • 18 replies • 422 views

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BillH10 (Texas)
Posts: 1,217
Posted:
One of our client boards is wrestling with a request from an owner to install a Ring type surveillance camera (not doorbell) on a common element wall in a carport due to vandalism to to the owner's vehicle. The camera would communicate only with her phone and the Ring recording service.

The Declaration allows the Board to approve requests to mount/install items on common area walls.

The request has morphed to the Board considering installation of association owned passive surveillance cameras to avoid every owner installing their own camera. Nothing the association would install would be actively monitored, only a recording would be made.

The President of the Board is fearful the association will possibly take on additional liability for an incident in the carport or on the common area if there are owner or association owned cameras about. She believes the presence of the camera will possibly convey a false sense of security to the victim of an incident, such as an assault, and is willing to urge the Board to spend $1,000-$1,500 for an opinion from the association attorney.

We do not agree with her, in over 25 years of living in an HOA and 15 years of managing HOA and condominium properties, we have never read or heard of any such possible enhanced liability.

So, have any of you encountered a concern such as hers? Are you aware of successful suits based on the premise the cameras may communicate a false sense of security? Have you other words of advice and counsel?

Thanks

MaxB4
Posts: 3,513
Posted:
You might want to read this case law, FRANCES T. v. VILLAGE GREEN OWNERS ASS'N. (1986) 42 Cal.3d 490
TimB4 (Tennessee)
Posts: 21,059
Posted:
My concern is that it is a common area.

I don't have an issue with cameras (I have them myself) but I would not want anyone attaching to a common element.

The question is, do others already have this (approved or not)?
If they do and it was approved, you can't deny this one.
If they do and they were not approved, you need to make everyone take them down if you deny this request.

If you are having problems with breakins, a camera might deter but can aid the police after the fact.
I would suggest the board get a legal opinion and decide if the Association wants to mount cameras.
MichaelT21 (Arkansas)
Posts: 462
Posted:
My issue with Association owned cameras is not liability. In my state, the law is clear that anything that can be viewed in public is suitable for recording.

My issue is that are Board members willing to volunteer their time to review recordings and provide them to the appropriate parties? Also, what if spouses wanted video recordings because they thought their spouse was cheating? Would the Board want to get involved in these situations?

Overall, I am turned off by Association owned cameras due to the extra workload put on a volunteer Board.
BillH10 (Texas)
Posts: 1,217
Posted:
Thanks Max, I will take a look.

Tim--

The question is, do others already have this (approved or not)? No, and no previous applications

If they do and it was approved, you can't deny this one. I agree, this is the first such request for any owner device or object to be mounted on a common element

If they do and they were not approved, you need to make everyone take them down if you deny this request. Yup. We made the owner applicant remove a camera she installed without permission and asked her to submit a request.

If you are having problems with break-ins, a camera might deter but can aid the police after the fact. No break-ins, no nothing on the property at all other than the applicant owner hates two of the Board members and is suspected of keying their cars. (Ah, the plot thickens. If the application is refused, will the applicant retaliate?

I would suggest the board get a legal opinion and decide if the Association wants to mount cameras. Thanks. It's not our money but we do try to provide fiscal guidance when appropriate.
BillH10 (Texas)
Posts: 1,217
Posted:
Michael, thanks.

The application was made in June. Almost immediately one of the Board members (who holds a high level management position in a local 'name' luxury hotel) began raising questions similar to those you posted.

The carports, which do not have doors and are in clusters of three parking spaces, are not general common elements by definition, they are Limited Common Elements designated as an appurtenance to a Unit.

The applicant claims the field of view of the camera can be limited to her carport space (there are no side walls and lines on the concrete to delineate the parking spaces). I doubt that's possible and, besides, other owners walk across the carport spaces when the vehicles are not present. We do too, when on the property.
AugustinD
Posts: 1,027
Posted:
Quote:
Posted By BillH10 on 08/29/2022 2:36 PM
The President of the Board is fearful the association will possibly take on additional liability for an incident in the carport or on the common area if there are owner or association owned cameras about. She believes the presence of the camera will possibly convey a false sense of security to the victim of an incident, such as an assault, and is willing to urge the Board to spend $1,000-$1,500 for an opinion from the association attorney.
I think the President is at least a bit naive.

I think liability in cases like this will always depend on (1) who has the deep pockets and (2) what the court says tomorrow.

I would dispense with this particular aspect of the decision-making. I would move onto whether cameras (whether installed by the owner or the HOA) are appropriate for this HOA's location. If so, then move onto the next step, which is how to make the cameras happen in a way that is consistent with the governing documents.

Have there been any prior reported incidents of vandalism or crime that cameras might have captured?

In my experience, the recordings of security cameras do not have to be reviewed unless there is a report of mischief/crime.
LetA (Nevada)
Posts: 2,679
Posted:
The point of attachment where the applicant wants to install said camera light, is this a carport space that is directly assigned to the unit? It may be safe to assume that there is
some sort of implied ownership by the unit owner. I feel there is no liability on the HOA, only on the condo unit owner.. Tapping into community electricity, that is an entirely different ballgame.

Going off the case law that Max posted, I would err on the side of caution and allow the installation. Will the camera light be mounted to the bulkhead of the carport canopy facing the vehicle?
KerryL1 (California)
Posts: 14,550
Posted:
Our urban high rise HOA has at least 16 common area cameras on the sidewalk exteriors of our buildings and in our lobbies & elevators. All neighboring high rises do too. The only time I've heard mention "false sense of security" is IF we were to post "signs" so residents might feel overly confident and not pay attention to their own security. HOAs around us are advised to not post such signs.

But all have onsite management & security staff who have monitors they watch and who would view the recordings if the PM request it. None of these many HOAs are worried about liability.

If the Board is concerned that the carports are vulnerable to vandalism, what about the assn. providing, maintain, etc. the cameras & monitoring system as noted. This is expensive.

If the board approves the owner installing a camera, it should be very careful about requirements, making sure to protect the limited common area from damage and crafting an application that can be used by future applicants. The app. would n ned disclaimers I thing so the assn. is not liable in any way.

Yes, should be reviewed by an HOA attorney, but $1,000-$1,500 seems excessive.

Frances,, 1986, is very well known so I didn't reread it. But in this case the HOA was liable as the plaintiff had been injured after more than one complaint to the HOA about inadequate lighting, and, I believe a previous assault against her(?) The assn refused to make improvement for repairs.
MikeB23 (Louisiana)
Posts: 109
Posted:
Our HOA installed cameras on the single entry/exit gate for the development. The cameras record the car and the license number of every car that enters and leave our development. No member of the Board and no owners in the development have access to the recording.

Three weeks ago an owner had their car hijacked. The protocol was the security company came, retrieved the recording, and gave it to the police. The hijackers were arrested within the week.
BillH10 (Texas)
Posts: 1,217
Posted:
Thank you all for your comments and references. I will begin reading the references over the weekend since rain is predicted and we are not going anywhere.

To respond to a couple of points/questions:

1. This is a very small condominium property, two buildings/12 units. There have been no incidents of vandalism or threats to persons in the 36 months we have managed the property until the 'keying' of vehicles owned by Board members began in early July.

This was after the Board explained to the owner who applied for approval to install a camera that there were issues and concerns regarding allowing an owner to mount a device on a common element and that input from the insurance agent and attorney would be necessary. Since the property is 38 years old, it is likely there have been incidents over the years.

2. The Board is considering an association owned surveillance camera system. A surveillance system was studied in late 2019, the Board rejected the proposal on the basis of limited value for the cost involved (vandals know about cameras, visible or not, and wear hoodies and masks).

3. The estimated legal expense is based on previous experience with this Board. One of the board members does not know how to interact with an attorney, insists on participating in meetings with the attorney to "provide input and clarification", and does not know when to be quiet.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Why have in person meetings with the attorney?

We would simply email our questions and get the response back. The board would formulate and agree on the questions before sending it to the attorney.
BillH10 (Texas)
Posts: 1,217
Posted:
Tim, that's my preference. The board member thinks he has some legal background meeting the attorney (Zoom nowadays) is the only way to conduct business. The president does not quash his requests.
MarshallT (New York)
Posts: 414
Posted:
You should trust your judgement and experience. I would not let the owner install a camera in a common area because, as you mentioned, more people will want to do it.

If there have been several recent vandalism acts, then the board may want to consider installing a camera in the carport. But there needs to be a policy about who is monitoring, whether owners can view footage, how long it's stored for, etc. I don't think the association would be more liable for installing a camera - as long as it actually records.
TimB4 (Tennessee)
Posts: 21,059
Posted:
My brother in law manages hotels.

He told me that they actually took out cameras at one point.
This is because several years ago, someone was attacked and it was caught on camera (not his hotel).
The victim brought legal action against the hotel because they should have seen the attack and stopped it.
Those cameras were not monitored (as I suspect many hotel cameras are not monitored).
The victim won (don't know if it was through the courts or a settlement).

I doubt Associations who install security cameras monitor them either.

Again, read the applicable statutes and check with an attorney if you are going to install cameras
KerryL1 (California)
Posts: 14,550
Posted:
I think an HOA camera if it can capture the area of concern is a good idea.

As I wrote above all, Condo high rises in my large city & mid rises have numerous cameras. We have 24/7 staff monitors in high rises and I'm sure in hotels. Nearby mid-rises and even low rises have cameras without 24/7 monitors. I simply think that if there were that much danger of "liability," they would not all have them.

I'd be very interested in reading the case that Tim refers to. There is something missing from his account. For one thing, I cannot imagine a sizable hotel that doesn't staff-monitor its many cameras 24/7. I can see if it's a small hotel with a sole night desk clerk, who must leave the monitoring area often for many reason. But in those cases, I can't image a plaintiff being awarded anything because this person didn't see the incident.

Still, Bill, the attorney's opinion is the best path. Tim's idea for directors to writ questions in advance for the president to ask the attorney is best. In our and most associations, only one director, by contract, is permitted to contact the attorney and that's usually the president.
BobD4 (up north)
Posts: 1,002
Posted:
Quote:
Posted By BillH10 . . . The President of the Board is fearful the association will possibly take on additional liability . . . She believes the presence of the camera will possibly convey a false sense of security to the victim of an incident, such as an assault, and is willing to urge the Board to spend $1,000-$1,500 for an opinion from the association attorney. . . . So, have any of you encountered a concern such as hers? Are you aware of successful suits based on the premise the cameras may communicate a false sense of security? Have you other words of advice and counsel ?"

Some jurisdictions even legislate a shield for Boards who act in good faith on professional advice albeit with bad outcomes. But respectfully, predictions here ain't so easy.

1 - Would the judicial mindset ( or civil jury mindset ) follow this sorta reasoning ?

Is there a “backup camera effect “ / rearside recordings effect ? If there is, would a civil court DARE TO TREAT SUCH IMPROVEMENT as to conversely / unintentionally even REDUCE caution by rearside pedestrians ? Or by other drivers ?

That’s if the rearside folks come to expect the folks ahead to take greater care for everyone else behind them too ? “Lemme just walk into the blindspot . . .”

Going further , should any other IMPROVEMENTS – safety or otherwise - dare to trigger a rebound liability effect ? eg “the other guy’s brakes are better. So maybe I can even be careless or expect him to watch out for my stupidity ? . .”

It respectfully may be impossible to case by case predict the mindset outcomes for this sorta scenario.

2 - Did dozens of non-recording cameras fatally lower the guard of these 2007 highrise condo murder victims ? And later their killer ?

Civil consequences are unknown here, but a triple killer’s 2015 - 16 criminal trials shone some light on the counter-effects of dozens of non-recording live cameras in place 7 years earlier at a highrise condo.

One of the elderly 2007 victims had even opened the unit door to the “plastic bag killer” on a practice run a day before he came back & suffocated 3 folks.

Ironically the plastic bag killer may himself have been lulled into a false sense of security.

No suspects at all for 7 years.

BUT AT A DIFFERENT CONDO SITE 7 years later he was identified from lobby recordings. That’s after randomly ringing buzzers & being admitted by a 101 year old condo owner whose suffocation he next botched. The killer’s family recognized him, alerted police and he is serving life in prison. So there can be a detrimental reliance but how will it play out ?

“2007 CONDO TRIPLE MURDERS (retired Federal Justice GARON): surveillance images not retained”

https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18134&catid=2

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