A Private Matter Communities Must Balance PRivacy and Security

 The issue of intellectual property and an individual’s right to privacy has become a greater concern since more and more people  conduct their lives online—whether for banking, social media or dating. While the aforementioned generally  have security features encrypted in programming platforms, there remain  justifiable concerns as to what is actually protected. This heightened sense of  scrutiny results in ancillary privacy concerns, especially for those living in  community associations.  

 Whether it is the installation of security cameras, insider criminal activity or  environmental health concerns, both boards and residents have to be aware of  state laws and governing documents. Cases of privacy intrusion happen from  coast to coast. Last year, for example, a Florida family living in a penthouse  suite sued its condominium association for cell phone towers that were  installed on their roof without permission causing loud noises and health  risks. In Hawaii, a security guard was arrested for copying residents’ keys and stealing credit card and banking information.  

 Understanding Privacy

 One of the perks of living in a condominium or townhome community is that it  offers residents the ability to build credit and have control of their home  without the headaches of funding and maintaining a single-family home. But  shared community living does possess certain restrictions and questions  regarding privacy are always at the top of the list. “The issue of privacy encompasses many different areas in community association  living, from access to personal information, to access to units (in a  condominium), to security guards and surveillance cameras,” explains Michael E. Chapnick, managing partner of Chapnick Community  Association Law, PA in Delray Beach.  

 While residents may think that their unit and information is off limits to  members of the board and management, this is not always the case. “While multifamily residential settings have many benefits, including community  stability/security and the efficient operation and maintenance of the property,  there are many compromises that must be made,” explains attorney Michael S. Bender of Kaye Bender Rembaum, a law firm in Pompano Beach. “Specifically, individual owners must give up a certain degree of freedom and  privacy which they might otherwise enjoy in a home that is not bound by the  recorded covenants governing the property, the Florida Statutes and the rules  and regulations of the association.”  

 “A condominium association also has the right to enter private units under  certain circumstances. Section 718.111(5), Florida Statutes, provides that the  association has the irrevocable right of access to each unit during reasonable  hours, when necessary for certain maintenance related duties or when necessary  to prevent damage to the common elements or to a unit,” explains attorney Rosa de la Camara of the law firm of Becker & Poliakoff in Coral Gables. To do so, many associations require that residents  provide a copy of their keys in case their unit needs to be accessed during a  time they are not available.  

 Bender adds, “regarding privacy, by statute, other owners have the ability to inspect and copy  certain information regarding an owner” that may otherwise be considered “private.” For instance, an owner in a condominium, cooperative, and a homeowners  association must recognize that other owners have the ability to inspect and  copy owner mailing addresses, voting certificates, account information  including the delinquency information of an owner, ballots including for an  election, and any email/telephone number/fax number provided to the association  to fulfill the association notice requirements, and provided that such owner  consents to the disclosure of this information (see 718.111(11) F.S.,  719.104(2)(a) F.S., and 720.303(4) F.S.).”  

 For a board, a gray area exists with regard to privacy when forming (or  amending) governing documents to address issues such as determining access to  units. “The right of access into a private unit exists under the described circumstances  and it is not just for "emergency" situations, thus the board must be very  careful to not abuse its authority or to overstep its boundaries. Guidelines  and policies should be adopted for instances where the association must gain  access to a private home, such as always requiring at least two persons to  enter the unit and logging the reason and time for entering the unit. This is  for the protection of not only the unit owner but also of the association and  its agents who are entering the unit,” de la Camara explains.  

 Chapnick advises boards and residents familiarize themselves with chapters 718,  719 and 720 in the Florida Statutes that detail what information must be  provided pursuant to a records request, and what information is protected from  disclosure.  

 The “Rules” Of Privacy

 Knowing resident and association rights when it comes to privacy can be a tough  matter to understand. Fortunately, boards and managers can learn how to establish and preserve  appropriate rules about confidentiality and privacy in their work on behalf of  the building and residents. “First and foremost, boards and managers should contact their legal counsel if  they have any questions regarding whether the law prohibits the disclosure of  certain information, or whether a desired action by the association would  violate the privacy rights of an individual,” Bender says. He states that the following must be kept confidential by boards  and managers: any information obtained by the association in connection with  the sale or lease of a property, such as background investigations, any medical  records of an owner, the social security number/driver’s license number/credit card number of an owner, personnel records of the  employees of the association, except for the written employment  agreement/financial records that show the compensation paid to an association  employee, electronic security measures that are used by the association to  safeguard date (i.e., passwords), and any attorney-client privileged  information.  

 Additionally, all boards have a fiduciary duty to residents and the association,  meaning it is their legal responsibility to act in their best interests. “For this reason, boards and managers should refrain from posting delinquency  reports in common areas, or otherwise discussing personal information of the  owners in open forums, like board or membership meetings. In addition to  possibly violating the privacy rights of an individual, such action will only  serve to improperly place a “target” on such persons in the community and does not serve a bona fide legitimate  purpose of the association. Furthermore, if the information posted or discussed  is inaccurate, it exposes the association to potential claims of libel, slander  or defamation,” Bender says.  

 Who is Watching Whom?

 While it is plausible and common for boards to grant reasonable access to a unit  for maintenance reasons, there are issues that can cause trepidation among  certain tenants, even if their respective best interests, or that of the  community, are guiding the motion. One example is security cameras.  

 “While video surveillance or security cameras are allowed in common areas,  Florida law disallows video surveillance in certain places where there is an  expectation of privacy such as bathrooms, changing rooms and locker rooms.  However, a unit owner who is neither in his unit nor in the described "private  areas" should not have an expectation of privacy and the association may record  video images for security over and on the common elements as long as no one  individual person is being targeted,” de la Camara says.  

 Chapnick adds that an association's governing documents will dictate whether  community approval is required before installing cameras. In most cases, if  surveillance cameras are being considered due to increase in crime or theft and  to augment resident's security, the board's consensus may be sufficient.  

 In some cases, boards might need to transmit resident's information to a third  party. What information can be sent and to whom, is circumstantial. “Under Chapter 718 (Condominium Act) and Chapter 720 (for homeowners  associations) of the Florida Statutes certain information about owners (such as  social security numbers, driver’s license, contact information, to name a few) is protected and may not be  released to third parties, unless the owner has consented, in writing, to the  disclosure of the protected information or there is a court order compelling  such disclosure,” says Bender.  

 Overstepping Boundaries

 As long as boards adhere to state statutes, they are able to make as many  security-based or privacy enhancements as desired. While these amendments  require a community vote, most often they are done with safety in mind. “People are usually leery of an association trying to place restrictions on their  ability to freely use their property. However, association boards are charged with the duty to consider the interests  of all of the members. Sometimes, the interests of the community as a whole  must outweigh the interests of only a few,” says Chapnick.  

 However, there are some instances that may cross the line including publicly  posting the names of unit owners who hasn’t paid dues. “If a board member improperly discloses information about an owner protected by  Chapter 718 (Condominium Act) and Chapter 720 (for homeowners associations) of  the Florida Statutes without the owner’s consent, and such disclosure results in the owner sustaining damages, the  owner could have a cause of action against the association for among other  things, breach of fiduciary duty. If the association is found liable for  damages proximately caused by the improper disclosure of protected information,  the prevailing owner would also be entitled to seek attorney’s fees incurred by him or her in the lawsuit against the association,” Bender explains.      

 W. B. King is a freelance writer and a frequent contributor to The South Florida  Cooperator. Editorial Assistant Maggie Puniewska contributed to this article.  

 

Related Articles

Disease & Disclosure

Preserving Privacy in the Pandemic

Q&A: Rules for Disclosing to Rule-Breakers

Q&A: Rules for Disclosing to Rule-Breakers

Census 2020

Be Counted Safely During COVID-19

 

9 Comments

  • IF A CONDO ATTY WRITES TO A OWNER AND FALSLY ACCUSSES OF HARASSMENT,IMMORAL ACTS, INTIMIDATION, BULLYING AND MORE CAN THE OWNER SUE HIM AS NONE IS FACTUAL?
  • Please stipulate if the BOD is allowed to install and view surveillance video of a common area (Pool/Hot Tub) or must it be done by a third party (Security Co.)
  • could they install camaras in the laundry room ?
  • Hello: I live in a condo and I was playing pool in a small room in my common elements. The billiard room is without security cameras and a board member came in and started video recording me. I asked him to stop and he did not. I called the police ... I told the officer I felt like I was being sexual harassed, as I was bending over breast exposed and short dress as he stared at me through his camera. I asked the board member to stop recording me several times, he would not. There was no one in the room but him and I. When my husband arrived, he asked why he was filming me? The board member took a swing at him and proceeded to leave. I know this board member was targeting me, as he has done in the past. Please help,
  • My HOA is allowing private citizens to video tape me and my neighbors cams posted clearly at my back and front yard!
  • My wife and I own two units in a condominium complex in Miramar Beach Florida, where the rules are that these units may not be rented short term. We understand that and have adhered to it but were recently accused by the HOA Boards attorney of renting our unit, which we did not do and emphatic deny the charge. This came following a one week stay by my best friend from the 5th grade though out life and another week stay by another close friend. Someone in HOA management either by direction of the HOA manager or the HOA manager herself, entered our unit without our express permission and removed a check sheet that I had prepared for our family and close friends that we allow to use at no charge for a week at a time. This we believe is the basis of their charge. There is no information about rental cost or such, only that they are responsible for the cleaning cost by our private maid service. We had our local MS attorney issue a denial letter and requested the name of the individual that removed and copied this document and used as a grounds for this accusation letter. We also demanded proof of the claim and an apology for the false claim. We demanded that all copies of the illegally removed document be destroyed and that all parties to the matter be directed to destroy any copies as well and to be told that this was a false charge. The response was luke warm to say the least and we were told that all private information in our document would be redacted but the letter would be put into our file as a unit owner. My wife and I are furious and believe that there is much more to be said here and we do not intend to let this slide. We are unit owners in otherwise good standing and refuse to let our good name and reputation be blemished but such a ridiculous, erroneous and slanderous claim with absolutely no factual evidence. What is your advice Sir. Regards, HG
  • To save this type of issue from happening, the Condo BOD /Management Company should issue instructions to the owners that notice should be sent to _____"X"______ if your unit is to be occupied as your "guest" with dates and explanations etc. This is typically all that the Mgr./Bod has the right to require. The Bod/Mgr. has certain rights and obligation to maintain a safe environment in the building and units, especially when not occupied... while not handled very well a photo of suggested evidence would be less personal than your description. Over-reach is not uncommon in the condo life style. You certainly were owed an apology, if only to make peace.
  • Have a situation in SRQ in a building with 400+ high risk (older) individuals. A resident recently contracted COVID 19 and the board alerted the association members of this fact w/o revealing the individual's name. Assoc members are demanding the release of the name to determine whether they had any contact with this individual. I (a non practicing Attny whose father is on the board) contend that the right of the association members and the implications of not releasing the name outweigh the individual's right to privacy. Noting your article re: medical records I assume that relates to obtaining records from within the unit and does not apply to knowledge obtained through observation in common area (ie seeing individual taken out on stretch through lobby). Would you agree that the board has a greater obligation to the association members en masse than to the individual's right to privacy?
  • May a resident of a HOA request from the property management company a list of residents with their addresses? The requesting resident is a real estate agent and is using this list for advertising.