July: Legislative Scoop

Video and Audio Surveillance & Property Management

Smile. You are on camera…practically all the time. Video recording devices and surveillance video are prevalent in today’s society. As residential property managers, we need to know the laws associated with video surveillance at our managed properties. Residents are also using their own video surveillance; so, an understanding of their rights is also important. Many video cameras now include audio recording, which brings into play regulations regarding recording audio as well.

The Fourth Amendment to the United States Constitution is the only legislation that comes close to addressing a federal stance on video surveillance in that it protects all citizens from “…unreasonable searches and seizures…” and requires that a court decide if there is probable cause before issuing a search warrant. The amendment does not offer the right to privacy from unauthorized videotaping, and the Supreme Court, in the case of Delaware v. Prouse, ruled that “people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks.”

Each state can pass their own laws pertaining to video surveillance, which means that laws vary by state. In Colorado, the state prohibits anyone from knowingly observing or taking any visual images of another person’s body without consent in situations where the subject of the filming or photography has a reasonable expectation of privacy. Similarly, New York, Rhode Island, and California prohibit video cameras anywhere that an individual has a reasonable expectation of complete privacy, such as changing rooms, hotel rooms, bathrooms, bedrooms, and any place where a person my get undressed. In Delaware and Connecticut, businesses must notify the public if there are any video cameras on the property that may break any expectations of privacy, even in a changing room or bathroom. If there is a public notice advising the public that video surveillance is in use, an individual’s rights to privacy are forfeited.

United States Code, Title 18, Section 2510 says that audio recording is not legal unless all parties are aware that recording is taking place, but many states have different laws. For example, many states have single-consent or one-party consent laws, which means that only one party must agree to the recording of a conversation. In a single consent state, it is legal to record a conversation that you are participating in without notifying the other party to the conversation, but it would be illegal to record a conversation that you are not participating in, i.e. eavesdropping or wiretapping. In order to avoid violating the law, it is best practice to disclose if audio recording is taking place with a prominently displayed sign or a prerecorded message on a phone system.

For residential property management, local and state laws generally permit landlords to install cameras in public spaces or common areas and prohibit cameras in any area where a resident would have a reasonable expectation of privacy. Having visible surveillance cameras monitoring common stairwells, parking lots/garages, entry ways, etc. can provide extra security for residents and prevent crime and suspicious activity. A property manager should never install surveillance cameras inside a resident’s personal living area or even in a manner that allows recording of the inside of the Residence. Hidden cameras should also be avoided, as they are illegal in many states.

Resident’s also have the right to have surveillance cameras. Property managers can prohibit the physical installation of cameras due to the damage installation may create or require written permission for installation of cameras, but cannot prohibit a resident from having surveillance cameras inside the property. Residents installing exterior cameras can be of concern, especially in multi-family living situations. Resident cameras may lead to complaints from neighbors. The same laws apply to the resident as they do to the property manager. A resident can record “public or common” areas, but cannot record any area where an individual would have a reasonable expectation of privacy.

As property management professionals, we should all expect that we are being recorded every time we enter a resident’s unit. It is our duty to remain professional while inside an occupied property and to avoid violating the privacy of the resident while still protecting our client’s investments. Although, it is illegal for a resident to record you inside their property, it is happening. Property managers are encouraged to write a policy about what can be discussed while inside an occupied property in the event that the resident is recording audio. Property managers are also encouraged to discuss these policies with maintenance providers and independent contractors.

There are benefits and detriments to video and audio surveillance for property managers. The best course of action is to be familiar with the laws in your state and ensure that if you are recording that you are following the laws. Be aware that your residents may be recording as well. Remember that recording someone for the purpose of blackmail or other malicious intent is illegal in any situation.

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