Surveillance Cameras: Friend or Foe to an Association?

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

 

Approvals to Alter Condominium Property Must be Made at a Properly Noticed Board Meeting

Question: I regularly attend the board meetings of my condominium association. When I cannot attend, I make certain to read the minutes when they are posted. In the association’s quarterly newsletter, the president announced that the association would be changing the configuration of a conference room to allow for storage. Though the board is authorized in our declaration to approve material alterations, there was no vote taken at a board meeting on this. I believe the board is making decisions via e-mail, which I understand is prohibited by statute. To confirm this, I sent the association a certified letter requesting copies of all email communications between the board members and the property manager. Thirty days has passed since I sent the certified letter and I have not been provided with access to the e-mails. Shouldn’t they have provided me access within 30 days or do I have to wait 60 days before I can take further action?  (T.T. via e-mail)

Answer: The Florida Supreme Court recently certified condominium and planned development law as an area of legal specialty. I was given the privilege of being appointed to the committee which will write the test that must be passed by lawyers who want to be certified as specialists in condominium law. Maybe we can use your question for the test, as it raises many interesting, inter-related and frequently encountered issues.

The Florida Condominium Act was amended in 2014 to provide that members of the board may use e-mail as a means of communication but may not cast a vote on association matters via e-mail. In my opinion, this was the law before the statute was amended. In your case, if the board is given authority by the declaration of condominium to approve alterations to the condominium property, those decision must be made at a properly noticed board meeting. Members (unit owners) are generally entitled to attend board meetings and speak to items the board will be voting on.

Whether the e-mails you have requested are “official records” of the association is a matter of some disagreement. The Condominium Act does not specifically address this issue. The Division of Condominiums, Timeshares and Mobile Homes (“Division”), the government agency that is tasked with oversight of condominium associations in Florida, issued an arbitration decision on the subject. The finding in that case was that e-mails between directors that are only on the directors’ personal computers are not “official records” of the association and therefore not subject to inspection by other owners. In a footnote, the arbitrator stated that his conclusion might be different if the association owned a computer, or if e-mails were printed up and passed around for discussion at a board meeting. There is also a question of whether the existence of emails on a management company’s computer has any bearing on the issue. Arbitration decisions are not binding legal precedent. The legal question on emails remains open, and is hotly debated from various perspectives.

To the extent your request for access to the e-mails is a proper request to inspect official records, the association must provide access to official records within 5 business days of receipt of a written request. After 10 days the association is presumed to have willfully disregarded the request and violated the statute. That presumption can be rebutted by the association.

Requesting access to official records is different than making a “certified inquiry.” The Condominium Act states that an association must respond to an “inquiry” sent by certified mail from a unit owner within 30 days of receipt. The Association must either provide a “substantive response” or notify the requesting member that the association has referred the matter to the Division, or legal counsel. If referred to the Division, the association must provide a substantive response within 10 days of receipt of an answer from the Division. If referred to legal counsel, a substantive response must be provided within 60 days of the original receipt of the inquiry.

Originally posted on Florida Condo HOA Blog

 

Summertime Grilling on a Condominium Balcony… Think Again!

In Florida, there are plenty of days that are just perfect for a good old fashioned barbeque. After all, who doesn’t love a good steak on the grill (except for maybe this vegetarian)? Even those who lived in condominiums were able to enjoy what northerners only dream of during the cold, snowy winters. Many multi-family dwellers took advantage, even though they were required to plug in rather than light up. That is, until December 31, 2011, when the 2010 Florida Fire Prevention Code was published. Much to the dismay of condominium unit owners, even electric grills are now prohibited. And though electric grills can be used and stored in the unit, as of December 31, 2014, when the Fifth Edition of the Florida Fire Prevention Code was published, no grills of any kind can be stored on a balcony. Though these prohibitions have been in place for some time, this has only recently become a subject of heated debate among those who feel that condominium associations that are enforcing the Florida Fire Prevention Code are infringing upon the unit owners’ freedom to cook outdoors. Sadly though, those condominium associations are only following the law, as the State of Florida mandates that local governments adopt all National Fire Protection Association codes and requirements and counties and municipalities are required to enforce the current Florida Fire Prevention Code. Even though a condominium association’s rules and regulations may permit the use of electric grills, it is the Florida Fire Prevention Code that controls. There may be some confusion regarding this prohibition given that the current version of the Florida Fire Prevention Code does not explicitly reference electric grills. However, a quick read through the previous versions of the Florida Fire Prevention Code addresses this. Section 10.11.7 of the 2007 Florida Fire Prevention Code (effective December 31, 2008) provided the following relative to grills being used in multi-family dwellings: For other than one and two family dwellings, no hibachi, gasfired grill, charcoal grill, or other similar devices used for cooking, heating, or any other purpose, shall be used or kindled on any balcony or under any overhanging portion or within 10 ft (3 m) of any structure. Listed electric ranges, grills, or similar electrical apparatus shall be permitted. Thus, the 2007 Florida Fire Prevention Code distinguished between the types of grills that could and could not be used in a residential setting in other than one- and two- family dwellings. While gas-fired and charcoal grills could not be used on any balcony or under any overhanging portion or within 10 feet of any structure, listed electric ranges, grills, or similar electrical apparatus were explicitly permitted. Three years later, the 2010 Florida Fire Prevention Code was implemented. Section 10.11.6 of the 2010 edition removed the distinction found in the 2007 edition: FFor other than one and two family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. The only exception provided was for “listed equipment permanently installed in accordance with its listing, applicable codes, and manufacturer’s instructions,” though the 2010 edition specifically states that the inclusion of this exception does not allow for the permanent installation of portable equipment unless it is permitted by its listing. Therefore, as of December 31, 2011, electric grills could no longer be used on balconies, but there was no express provision against storage of these items. Storage is now addressed in the latest version of the Florida Fire Prevention Code. Section 10.11.6 of the Fifth Edition, effective on December 31, 2014, now provides as follows:

COOKING EQUIPMENT. 10.11.6.1 For other than one- and twofamily dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. 10.11.6.2 For other than one- and twofamily dwellings, no hibachi, grill, or other similar devices used for cooking shall be stored on a balcony. 10.11.6.3 Listed equipment permanently installed in accordance with its listing, applicable codes, and manufacturer’s instructions shall be permitted. cont

Sadly, much to George Foreman’s dismay, condominium unit owners are now even prohibited from storing their electric grills on their balconies. The exception relative to “listed equipment permanently installed,” however, was carried forward. With the approval of your local fire marshal and the applicable building department, and the assistance of a licensed electrician, there are electric grills that are designed to be “permanently installed.” Before going to too much trouble, though, you will want to make certain that your association has not adopted a prohibition against grilling of any kind, despite the exception in the Florida Fire Prevention Code.

Written by Sarah Spector, Esq. Originally posted on Becker & Poliakoff Community Update