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.
In Illinois, privacy is a right under the law. “Section 6 of the Illinois Constitution guarantees that 'the people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices of other means',” explains attorney Barry Kreisler of Chicago-based Kreisler Law, P.C.
Privacy in condominiums and HOAs take on many forms and boards, management and residents should be aware of what they have a right to know versus what should and can be kept confidential.
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.
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. “Each unit generally has the right to be free from physical intrusion without specific permission but this right must be balanced against the right of the association to immediate access to each unit to prevent damage or danger to the common elements or other units and their occupants from, for example, a broken pipe or fire danger,” Kreisler explains.
The Illinois Condominium Property Act also explains several circumstances in which privacy must be honored, says Matt Goldberg, an attorney at the law firm of Bancroft, Richman & Goldberg, LLC in Chicago. Discussing the details of past, present or probable litigation, rule infractions and violations, financial delinquencies and employment issues are a violation of privacy for the parties involved. “The decisions of these issues have to be made at a public meeting but that doesn't mean the intricacies of those discussions should be made public,” he says.
If boards do wish to discuss matters that are private, such as those relating to resident finances, they can go into executive session. “As long as the board goes into executive session and closed sessions, to talk about delinquent payments, talk about violations of rules and regulations, and what action the board deems appropriate in those circumstances, then I think that those interests are being safeguarded,” says attorney James Arrigo of the law firm of Tressler LLP in Bolingbrook.
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 for tenants and residents alike, even if their respective best interests, or that of the community, are guiding the motion. “A condominium board generally has the right to enact reasonable rules and regulations governing the condominium, provided that it follows the procedures and limitations set forth in section 18.4 (h) of the Illinois Condominium Property Act,” says Kreisler.
One example is security cameras. Goldberg explains, “If the cameras are considered an improvement, meaning the association didn't already have them in place, most declarations require some level of unit owner approval when you are improving the common elements. That aside, in terms of a decision to want to put in security or to seek out contracts and move forward with such a project—then no, the board is trusted with governing the day-to-day decisions and running the association—and if they feel it is in the best interest of the unit owners, they can move forward as long as they have resident approval for the amount of spending allowed.”
“An association has a duty to keep the common areas of the condominium reasonably safe from hazards such as tripping and falling, inadequate lighting and security,” says Kreisler. This is part of the general duty imposed upon the boards of managers of the association, he continues, “to provide for the operation, care, upkeep, maintenance, replacement and improvement of the common elements,” under section 18.4(a) of the Illinois Condominium Property Act. “Thus, in some situations, it may be appropriate or necessary to provide for video and or audio surveillance of the common areas, security guard protection, locked gates and doorways.”
Another concern that may arise is a board handing out information to third parties, whether the association's attorney or other residents. In some communities, even information such as addresses and telephone numbers can be requested by other residents but boards and management must be careful with items such as financial records and executive meeting minutes. “It depends who the third party. If a crime was committed and it is the police demanding surveillance footage to solve the crime, you have to comply with that authority. Whereas, if it is a unit owner saying they want to review those video tapes because they saw something, there should be a procedure in place in the rules for review of video tapes by an unrelated unit owner or someone else. Requests should go to the board and the board should determine if that information should be released,” Goldberg says.
In some cases, boards will require that all guests and service personnel sign in and out when visiting the building. While this, again, is commonplace in many buildings, concerned parties are sometimes wary of why this information is needed. Goldberg says that this concern is especially prevalent in larger buildings but says that boards have the authority to require sign-in logs and should enforce this policy, which would help track guests and visitors.
In addition to keeping a log, boards may be able to restrict the amount of time guests can stay. This policy certainly is not applicable to weekend stays or even two week stays but some associations may cap overnight guest stays to anywhere between 30 to 60 days, because it blurs the line of who are residents and who are not,” Arrigo says.
As long as boards adhere to state statutes and association documents, they are able to make as many security-based or privacy enhancements as desired. “The board has a fiduciary duty to uphold those rules and regulations and implement them. Failure to do so would subject the board to breach of fiduciary duty,” says Goldberg.
However, there are some instances that may cross the line including publicly posting the names of unit owners who haven’t paid dues. If a resident believes the board or management company may have over-stepped this line, the first step would be to bring the issue up with the board in a written request or during a one-on-one meeting, says Arrigo. It also may be wise to seek the counsel of the community attorney as well, if it’s an instance in which there’s a discrepancy in interpreting the bylaws or rules. “Sometimes people believe they may have rights in certain situations but those perceived rights aren't even law,” he says.
That being said, privacy and security is a delicate subject. “You have the right to raise the issue, you just have to work through the channels to get it done and hopefully obtain enough support from your neighbors to make it an issue that the board does address,” Arrigo adds.
If the board is unresponsive or doesn't take appropriate corrective action, residents can file a suit if they feel there has been a breach of the board's fiduciary duty or a breach of the resident's privacy, says Goldberg.
Balancing privacy and security in a condominium setting is a balancing act that boards and managers must take very seriously. However, when done properly, residents can be safe and secure in their own homes and in the knowledge that their investment is well-protected.
W. B. King is a freelance writer and a frequent contributor to The Chicagoland Cooperator. Editorial Assistant Maggie Puniewska contributed to this article.