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.