By: Roy Helsing
Question: In our community there has been some suspicious activity that homeowners are rightly concerned about. Now, some have taken to installing motion detection cameras and posting pictures on the unofficial social network page, which is heavily trafficked by homeowners. Are there legal issues with this action, especially considering it does not necessarily discriminate among those deemed “suspicious” and those residents who just happen to walk by?
I cannot give you legal advice; for that you need to contact the association’s attorney to discuss HOA issues. Your question was interesting enough, however, that I talked to several attorneys and received pretty much the same advice from all of them. If any attorney reading this (there are about 20 who subscribe to this newsletter) would like to send me their take – particularly if it is different – please do.
None of the attorneys I talked to thought there were any prohibitions or HOA issues concerning private individuals filming common area. We are assuming the cameras are inside their unit or exclusive use common area. If not, then you most likely have a rules violation you should probably address. One of the attorneys was familiar with a local jurisdiction that prohibited citizens filming public roads from a permanent location unless it was approved by that jurisdiction. All attorneys agreed that sooner or later, someone was going to raise a pedophile charge if the cameras in any way cover areas where children may play.
The best thing going here is that the internet postings are being done on a non-official social network page. There are many, many reasons why these social pages need to be kept “unofficial” and this is just one of them. However, in order to keep them unofficial no Board member or Committee member should be taking part in them as this can raise numerous HOA issues, and they should not be discussed in Board meetings or in correspondence. Merely recognizing them by the Board can make them “official” even if you call them unofficial. All attorneys I talked to concurred that if your association has one of these sites, you should talk to your attorney on how to protect the rest of the association from the liabilities these sites can cause the membership.
Every time I say that, I get violent objections. Therefore, let me try to explain it a bit better. Everyone recognizes the first amendment. Neighbors have a right to talk to each other over the backyard fence – and technology has moved today’s backyard fence into cyberspace. However, people can cause harm in private and public conversations, and often do. Association social media has caused “loss of sale” litigation, defamation litigation, and a host of other issues. When the association recognizes these sites (either intentionally or unintentionally) the liability can now belong to all the homeowners (and possibly the Board of Directors). If your association has such a site, and Board or committee members are taking part in it, or the association is otherwise recognizing it – even “unofficially,” I recommend you get with your attorney so s/he can discuss with you directly your exposure as an organization, the steps you can take to minimize it, and other HOA issues that could arise. You cannot keep people from using the internet, but you can protect your association against their abuse.
Articles are for advertising and general information by The Helsing Group, Inc. They are not intended to provide legal advice, but rather reflect our opinions as Community Association managers and Consultants. Readers should not act on issues raised in our newsletters or websites without consulting legal counsel.
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