Video “security” cameras seem to be everywhere these days and many community associations are jumping on the trend. However, while the safety of its community should be of paramount importance to an association, not all communities need cameras. In fact, video cameras may expose an association to certain risks and liabilities that would otherwise not exist. Unless the governing documents provide otherwise, an association does not owe any specific security obligations to its membership. However, an association can assume certain obligations and liabilities by appearing to provide security protections to its members and residents. While security concerns cannot be ignored, the mere act of installing camera equipment can create the assumption that an association is a security provider for its community. In fact, Florida courts have routinely held that if an association undertakes, or appears to undertake, the duty to provide security for its community, it must also take certain measures to prevent criminal activity from occurring on the premises. Community associations have also been held responsible for failing to adequately protect residents from “reasonably foreseeable” criminal conduct of third parties. Therefore, before jumping on the costly video camera bandwagon, an association should carefully assess whether its security needs outweigh the potential risks of installing the cameras, as the lawsuits related to this issue are not cheap. The installation of “security” cameras is considered a material alteration of an association’s common elements. As such, generally speaking, 75% of the total voting interests of an association must approve the installation of the cameras. Although there is an exception to this voting requirement, falling under its umbrella is not the norm for most associations. Moreover, if the exception doesn’t apply and an association installs the cameras without the voting approval, it will have to remove the cameras and restore the property to its previous condition. Further, video cameras should never be described as “security” cameras. They should be called “surveillance” cameras and an association’s board of directors should describe their purpose as such and nothing more. Also, if an association installs surveillance cameras, it must then ensure that they are functioning and properly maintained. Regular inspections of the camera equipment should be conducted and documented by experienced professionals. Procedures for the testing and operation of the cameras should also be implemented and routinely followed. Therefore, part of an association’s budget should be allocated for such expenses.
As an aside, a surveillance camera’s recording footage is not considered an official record of an association. As such, camera recordings are not open for review by an association’s membership. Moreover, an association is not legally obligated to store them for any specific period of time. Nonetheless, the recordings should be kept, in a secure location for a reasonable period of time, and access to them should be limited to an association’s manager and board of directors. Likewise, an association should be careful of how it disposes of a camera’s video recordings. Towards that end, a procedure regarding the storage and destruction of any recordings should also be adopted. Additionally, to the extent possible, any video recording that an association wishes to keep should be preserved in its original and uneditable format. Surveillance cameras should only be installed in the common elements of an association’s community. Common sense and privacy concerns also dictate that cameras should not be installed in locker rooms, bathrooms, or facing a particular dock slip, balcony, resident window, or patio either, unless there is a specific and palpable criminal activity and/or egregious nuisance concern related to one of those locations. Further, barring any known nuisance and or potential criminal activity issue, care should be taken by an association to ensure that no particular common area is effected by the cameras, to the exclusion of others. This will help deter any possible argument that a member may have regarding being singled out by a camera installation placement. Likewise, as to any potential claims related to the unequal treatment of members of an association. Finally, if an association installs surveillance cameras in its community, the following additional course of action is recommended: the cameras used should be capable of attaching a date and time stamp to the digital image, or some other means of capturing the specifics of a particular recording; signs should be posted in conspicuous locations near the cameras which advise of their use; and, the association should notify its insurance agent of the installations, as the cameras may result in a reduction of the association’s insurance premiums. The bottom line is that, when used properly, surveillance cameras may deter certain criminal and other unwanted activities. However, they can also evoke a false sense of security and create as many problems and headaches as they prevent. Therefore, an association should think twice before installing surveillance cameras in its community.
Written by Astrid Guardado. Originally posted in Becker & Poliakoff Community Updates