Published on: April 15, 2016

Under the Massachusetts Privacy Act (M.G.L. c. 214, §1B), individuals have a “right against unreasonable, substantial or serious interference with his privacy.”

That being said, in a number of cases, it has been held that there is no reasonable expectation of privacy in the common areas of a community associations (which would include common area hallways, community rooms, common basements, foyers, etc.). Com. v. Serbagi, 23 Mass. App. Ct. 57, 498 N.E.2d 1363 (1986); Com. v. Williams, 453 Mass. 203, 900 N.E.2d 871 (2009). With respect to the common area roadways within an association, under the Fourth Amendment of the United States Constitution, there is no reasonable expectation of privacy in the publicly visible exterior of a vehicle. Com. v. Connolly, 454 Mass. 808, 819, 913 N.E.2d 356, 367 (2009).  Although, the interior of a vehicle would be subject to Fourth Amendment protection under the. New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986).

Therefore, an association may legally install video surveillance equipment within the community’s common areas and along the association’s roadways, subject to certain caveats.

To that end, the installation of video surveillance equipment could be construed as an improvement (particularly if there is no existing monitoring system), in which case an improvement vote would be required in accordance with M.G.L. c. 183A, §18.

Further, the association installing video surveillance cameras must use due care to avoid recording any conduct within an individual Unit and/or within the interior of any vehicle.

Moreover, an association considering video surveillance cameras, should also be aware of the statute concerning the interception of wire and oral communications (M.G.L. c. 272, §99) (the “Wire Tapping Statute”).

The Wire Tapping Statute makes it a crime for any individual to willfully commit an interception, attempt to commit an interception, or to procure any other person to commit an interception or to attempt to commit an interception of any wire or oral communication.

For purposes of the Wire Tapping Statute, the term “interception” “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.”

The Wire Tapping Statute defines the term “wire communications” as “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.”

Under the Wire Tapping Statute the term “oral communication” is defined as “speech, except such speech as is transmitted over the public air waves by radio or other similar device.”

In light of the serious consequences for violations of the Wire Tapping Statute, it is recommended that visible signs be present throughout the association which clearly state that video surveillance is in use, and that all persons whom traverse through the common areas and/or whom travel along the roadways within the association, may be recorded. Further, the association may want to avoid using surveillance cameras which record sound and/or or that the association ensures that any audio recording capability on the cameras is turned off in order to avoid recording any oral communication. Further, the video surveillance cameras should be clearly visible and not concealed.

When installing video surveillance equipment, the association should adopt a clear video surveillance policy, which should state that the equipment being used is referred to as “surveillance” and not “security.” Additionally, the number of persons whom may view the recordings should be limited. Further, while the surveillance videos may be given to law enforcement personnel upon their express request, the recordings should not be disseminated to any other individual.

There are additional liability considerations for associations to consider when installing video surveillance equipment. To that end, in Massachusetts, the general rule is that a property owner owes a duty to all lawful visitors on the premises to use reasonable care to maintain the property in a reasonably safe condition in consideration of all the circumstances.

It is a general rule however, that a landowner does not owe a duty to affirmatively protect visitors against the dangerous or unlawful acts of third persons. Similarly, landowners typically do not owe a duty to warn of open and obvious dangers on their premises, because it is not reasonably foreseeable that a visitor exercising reasonable care for his or her own safety would suffer injury from such an obvious danger.

However, an association may be held liable where it would not otherwise when it voluntarily acts in such a manner so as to create the perception of security or safety for its residents. Under these circumstances, the association may create the perception that it provides safety or security services upon which a visitor or resident may rely in letting their guard down, placing them in a more vulnerable position than they would have otherwise been in had the association never undertaken any action at all. Such actions may be through the employment of lobby personnel or courtesy officers or in this case, through the installation of surveillance cameras (despite the fact that the cameras are often un-manned).

Accordingly, when installing video surveillance equipment, the association may want to consider adopting a “no security” amendment to its governing documents upon obtaining the requisite consent. Through such amendment, the association may expressly disclaim liability for any criminal or unlawful acts which take place on the Association property, in spite of any security or safety measures previously undertaken by the association (i.e, the installation of surveillance cameras). In the case of Bradford Square Condominium Association, Inc. v. Miller, 258 Ga. App. 240 (2002), the Georgia Court of Appeals affirmed a trial court decision upholding a “no security” amendment adopted by the association of condominium owners as valid. While there is no case directly on point in the Commonwealth of Massachusetts, it is expected that a similar “no security” amendment to an association’s governing documents would be upheld and presumed valid if the proper amendment procedures were followed in adopting the same.

For any questions regarding this article please contact Jennifer Barnett at jbarnett@meeb.com.