Legal Aspects of On-site Security Systems
Let’s say, hypothetically, an association begins to consider the installation of security cameras in its common areas in order to protect residents. The board noticed a dramatic increase in crime in surrounding neighborhoods, so they felt this would be a good decision for community. However, if they install this system, are they opening up their association to liabilities it didn’t previously have? What are the best practices for an association to follow when using and installing security cameras?
We spoke with Angela M. Morisco, an attorney with Becker & Poliakoff, LLP in Morristown, New Jersey, about the legal aspects involved with the installation and operation of security cameras.
While resident protection is not an association’s main focus, an association with some sort of security camera or surveillance system can be more attractive to potential homeowners than an association without security cameras or some sort of surveillance system. “Generally, when individuals buy a home within any type of homeowners’ association, they likely expect and welcome a certain level of security,” Morisco said. “In a gated community, for example, owners may enjoy the feeling of being surrounded and secured, as opposed to living on their own in a single-family home.”
With so much surveillance present in our modern culture, Morisco believes “a certain level of security is now expected and very attractive to individuals since buying a home is likely an individual’s largest lifetime investment.”
According to Morisco, generally there is no legal obligation in any governing documents or under common law which mandates associations to provide security cameras or surveillance. “The association has an obligation to maintain and repair any safety equipment or repair street lights, etc. in common areas, but the obligation does not generally extend to providing surveillance to protect residents or their visitors from criminal acts ,” she said
Regarding the installation of security cameras, Morisco said, “it is more of an expectation rather than a legal obligation.”
While the addition of security cameras may be beneficial to homeowners, i.e., it may serve as a deterrent to crime, it may actually serve as a detriment to associations. “By undertaking the installation of security cameras, the association may be taking on a responsibility that could lead to increased liability,” Morisco said. “Once the cameras are installed, the association will have a duty to maintain [the system] and to ensure that it is functioning properly or risk being sued if it is not.”
Although the association is not legally responsible for protection against criminal activity, the association may be taking on a higher level of responsibility with the installation of security cameras and therefore, “there could be an increase in claims against the association for negligence,” she said, “especially if the event was reasonably foreseeable due to an increase in criminal activity in a surrounding area of the community or due to risks known to the board.”
“An association may be sued for negligence if a crime occurs in an area where there was a security camera because to some degree, the presumption would be that the association is assuming an increased responsibility of owner protection,” Morisco explained. “If the association somehow did not perform its obligation in a reasonable manner, then it could be sued for negligence if it failed to maintain the equipment or eliminated the security camera.”
To protect itself from legal issues resulting from the presence of security cameras, what precautions should associations take? Morisco broke it down into three steps — establish a written policy regarding the purpose of installation, inform homeowners of the location of all cameras, and establish who will have access to security footage and for how long it will be retained.
The most important step, according to Morisco, is to establish a written policy to distinguish the purpose of the cameras — is the purpose of the cameras for surveillance and monitoring owners who may violate the association’s rules and regulations or is it for enhanced security and protection of homeowners, such as crime prevention? Labeling the purpose as surveillance rather than security may relax the owner’s expectations and avoid claims that the association represented that it was secure.
“If the stated written purpose of the cameras is for protection, and something were to happen, then that could serve as the basis for a liability claim and it could open up the floodgates to the association’s exposure for negligence,” she added.
Residents should be made aware of the written policy, as well as informed of the location of all cameras. “Will the cameras be in all commons areas — the parking areas, the entrance, the laundry room?” asked Morisco. Where is the security or surveillance expected?
When installing the cameras, associations should ask questions of their security vendor, including how long the gathered information will be retained and who is going to manage the collected information? Also, will the residents assume that the cameras are being monitored 24/7 or not at all and only viewed if an incident arises? The answers to these questions should also be made available to homeowners to ensure a complete understanding regarding the purpose of the surveillance vs. security system.
Costs must also be considered when associations are debating whether or not to install security cameras in common areas. If appropriations for the cost are not within the budget, the association may have to increase assessments or make a special assessment to pay for the installation, which may result in a situation where homeowner approval would be required. “Regardless of the intricacy of the surveillance system, it will presumably be a very large expense for the association,” Morisco said.
While security camera systems may be costly and may increase an association’s responsibility, security camera footage can also be helpful for an association in the case of a slip and fall lawsuit. “If the presence of the cameras is known and it is in a public area where there is no expectation of privacy, I would think that the association would be permitted to use that footage in the case of a lawsuit,” said Morisco. The footage may also be helpful to the association to avoid exaggerated or false claims.
Lastly, do homeowners expect this new level of security by using security camera systems will become law? “Personally, I don’t foresee any specific law in the near future that would require associations to have security cameras or surveillance systems,” Morisco said, “but in this day and age — where most everyday activity is under surveillance — most individuals would likely assume that the association provides some level of security.”