By Damien Bielli, Vial Fotheringham, LLP
Audio and Video Security Systems within Associations
It is estimated that most people are caught on camera at least 70 times every day. This may include your homeowners’ association (“HOA”) or your neighbor’s home security cameras. Can owners within an association install cameras? What should an HOA consider before installing cameras?
Association Camera Systems
Generally, there is no requirement that an HOA install security cameras on the common area as an HOA is not the ultimate guarantor of safety for a community. HOAs must, however, exercise ordinary care if they do decide to install audio or video surveillance equipment.
If a community’s governing documents do not require the HOA to provide security, the HOA, by installing cameras, may be creating a duty to the members or implying a guarantee of safety where none otherwise exist. While security measures are a good idea in principle, an HOA must be careful not to unintentionally increase its liability for third party criminal acts by creating an expectation of security through the installation of cameras.
If the Association does wish to install cameras with audio and/or video capabilities, then the intent of this equipment must be made explicitly clear to the membership. If it is not the intent of the Association to provide security, then it should be communicated plainly to residents that it is not providing that service. This should be done by way of written policies setting out the limited purpose of the surveillance equipment, as well as posting signs around the community that the equipment is not monitored for security purposes. This is necessary so residents and guests do not believe security is enhanced by the use of cameras. This, however, is not a guarantee that the HOA will be insulated from liability should an incident occur.
HOAs must also be cognizant of local and state laws regarding audio and visual recording. Colorado privacy laws prohibit anyone from visually recording another without consent in situations where the person has a reasonable expectation of privacy. Areas that create an expectation of privacy such as bathrooms, locker rooms, and conference rooms should not have audio/visual surveillance equipment. Colorado is a one-party consent state which means someone can record their own conversations without telling others. However, it is illegal to record a private conversation to which the person recording is not a participant. If audio and video equipment is located in public areas there is generally an exception to this rule. You should seek legal advice prior to the placement of audio and video recording devices in your community.
Resident Camera Installation
Residents who wish to install audio/video surveillance equipment will be subject to the community’s governing documents. This is especially true in condominium and townhome communities where exterior maintenance obligations usually rest with the HOA and a general prohibition to exterior modification is found. In these communities, clear rules should be enacted on the location, size, and placement of these devices, if permitted. The same is true for single family communities. HOAs must look to the authority granted within the governing documents for regulation of size, placement and location of these devices. Once again, clear rules and regulation should be adopted governing the exterior placement of security cameras, if permitted. As always, if the Board has any questions, they should contact legal counsel.
As a partner in Vial Fotheringham LLP, Damien has unique background in Homeowners’ Association Law, trial advocacy, insurance defense, professional liability, coverage disputes, labor law, employment law, construction, commercial litigation, and contracts.
