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Subject: HOA fining me for security camera placed inside my unit
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Author Messages
DaleA
(Colorado)

Posts:3


07/08/2018 11:09 AM  
I live in a large condo with a high crime rate and I placed a security camera fully within my unit interior overlooking my patio and which can oversee one of the common area paths.

The condo documents allow regulation of the limited common elements (patio) and the common elements, but the HOA is insistent that they can ban a camera placed inside my unit because it can see the common area, where they claim there is an "expectation of privacy."
I asked for an appeal to cite how the condo docs justify their regulation, but they refuse by silence to grant one or otherwise answer me now, but are answering with fines. The association while large (100+ units) is controlled by a tight group of insiders and we have only one owner's meeting about every 18 months (with the delays), and it's deliberately held at a time when almost no one can attend.

Does anyone in the know believe that common area regulations can be used to control the interior of the units in this manner?
Does this sound like a slam dunk if I sue in small claims over improper regulation by the HOA?
Any other thoughts?
MarkM19
(Texas)

Posts:85


07/08/2018 11:51 AM  
Dale,
How do they know you have a camera inside your Condo? Would they have an issue if you choose to watch out the same window and use a smart phone to record what you see? If it is a public space how can there be an expectation of Privacy? I think they are trying to bully you. That being said my degree is in "Common Sense" not "Law" so you should run it by a professional.

After being on a board for 8 years and a President for 4 years. I have only had one HO follow through with a lawsuit but in that case we thought we had more than enough documentation and bylaws to support the HOAs case. We lost the case and it is my feelings that most Judges are not HOA friendly and tend to favor Homeowners. It sounds like this would be a small claims item so you would have to do all the paperwork.


Good Luck and please let us know what happens. We all learn from other peoples problems here.
KerryL1
(California)

Posts:5656


07/08/2018 12:11 PM  
The board needs to show you the verbiage in your governing docs that forbid cameras viewing the common area. The expression I alway hear is that there IS NO expectation of privacy in common areas. that's how we can justify cameras in our pool area, lobbies, elevators, etc.

Our CC&Rs don't permit penetration into the sheetrock of our condos without Archit. Comm. approval. Could that be the issue? Does your HOA have Architectural Guidelines or a section of the CC&Rs about the topic?

I believe CO is an open meeting state and board meetings must be open to Owners (Members). Doesn't your Board meet at least quarterly and maybe monthly??
GeorgeS21
(Florida)

Posts:569


07/08/2018 12:56 PM  
Wow - assuming there aren’t things we don’t know about the situation, I would nip this in the bud ...unless I was strategizing about a bigger payoff or punishment for the Board members 🙂

I would do my own first letter, noting the rules, the CCR components, Florida statute (as appropriate), etc ...registered delivery to EACH of the Board members.

If I didn’t get a response in a timely manner, or if there were more threats, I would notify the community via letter, then hire a lonely, ugly, mean, overweight, sweating , high blood pressure lawyer and plan to make some money - let him guide you on how to make the money.
DaleA
(Colorado)

Posts:3


07/08/2018 2:21 PM  
The camera is on a window sill, facing outward.
JohnC46
(South Carolina)

Posts:7695


07/08/2018 2:22 PM  
If the range of the camera exceeds the patio, there could be expected privacy issues.
DaleA
(Colorado)

Posts:3


07/08/2018 2:23 PM  
>>KerryL1

regardless the law, all board meetings are held in executive session as far as I know. There are never any announcements. Decisions simply come from the heavens, so to speak.
SheliaH
(Indiana)

Posts:2252


07/08/2018 3:37 PM  
This sounds like one of these situations where the documents are behind current events, as many people are using security cameras and those RING doorbell systems with the security camera. It's also why the documents should be reviewed every few years to see if there are some major developments that need to be addressed or outdated stuff that needs to go.

In this case, the law can vary from state to state and since your documents don't specifically mention video cameras, a judge would probably have to decide. Your board should really grant you an appeal so you can at least discuss the issue, but since it won't (some people are just stubborn and that can backfire on them if they aren't careful), you may need to go to small claims court and see what happens.

In the meantime, here's an interesting article I just found on the subject - you might want to review this and then discuss your situation with a private attorney. Maybe he or she can persuade the board to grant you that hearing and you can go on from there.

https://www.forbes.com/sites/marcwebertobias/2016/08/22/is-your-smart-security-camera-protecting-your-home-or-spying-on-you/6/#577543913c8c
KerryL1
(California)

Posts:5656


07/08/2018 4:35 PM  
Well, Dale, Janet might check in and she knows CO statutes. If your board is breaking the law, perhaps a bunch of you can vote them out
GenoS
(Florida)

Posts:2349


07/08/2018 4:39 PM  
Posted By KerryL1 on 07/08/2018 12:11 PM
The expression I alway hear is that there IS NO expectation of privacy in common areas.

That's how I understand it as well. There is no expectation of privacy in common areas.
KerryL1
(California)

Posts:5656


07/08/2018 6:37 PM  
Last condo-related question: How do you keep your camera on the window sill, i.e., how is it stabilized?
JenniferG11
(Texas)

Posts:436


07/08/2018 7:52 PM  
They canNOT deny you seeing all the documents! The Declaration, by-laws, and rules and regs. Check your county office, they should be recorded there. You might be able to find them tonight. If not, they cannot deny you requesting those. Instead of asking them to show the part that backs up what they are saying (which they should, but they are not), ask for the entire set.

They should direct you to their website where they are posted or furnish you with a copy. Meanwhile, why not take the camera down temporarily to avoid the continuing fines, and then re-visit the issue when you get the docs.

I don't think they are going to be able to hold you to these fines in the end. If it was in the docs or R&Rs they'd quote that. If it was a state law, they'd point to that.

Nowhere outside is there an expectation of privacy, though I do not know the laws in every state.

I understand why people would not like it. I don't. I have come to hate all of it. The ring doorbells, cameras I see poking between window blinds, and all the ones I can't see, but such is life.

By now everyone here has seen me walk the dog at night in PJs :p
JenniferG11
(Texas)

Posts:436


07/08/2018 8:03 PM  
Posted By DaleA on 07/08/2018 11:09 AM
I live in a large condo with a high crime rate and I placed a security camera fully within my unit interior overlooking my patio and which can oversee one of the common area paths.

The condo documents allow regulation of the limited common elements (patio) and the common elements, but the HOA is insistent that they can ban a camera placed inside my unit because it can see the common area, where they claim there is an "expectation of privacy."
I asked for an appeal to cite how the condo docs justify their regulation, but they refuse by silence to grant one or otherwise answer me now, but are answering with fines. The association while large (100+ units) is controlled by a tight group of insiders and we have only one owner's meeting about every 18 months (with the delays), and it's deliberately held at a time when almost no one can attend.

Does anyone in the know believe that common area regulations can be used to control the interior of the units in this manner?
Does this sound like a slam dunk if I sue in small claims over improper regulation by the HOA?
Any other thoughts?




OK, re-reading, so yo do have the docs? They say they can regulate the common areas? OK, if they do, but then they'd have to lay out what those regs are, not just leave it up to the whim of whoever (unless that language is specified).

For instance, what we can and cannot have on our porches and patios IS at the whim of the BOD. The rules say that anything they deem to be 'unsightly', so some people are told you have too many plants, or the pot with the dead plant or no plant needs to go, etc. Each and every thing is not listed because that would be impossible, and some things are a judgement call (someone could say the empty pot is attractive decoration, with or w/o a plant in it).

Either way, I personally would take it down to temporarily cure the violation and stop the fines and then proceed in finding out my rights for sure. Only if I felt 100% confident in my eventual win would I leave it up and let the fines keep coming.
KerryL1
(California)

Posts:5656


07/08/2018 8:36 PM  
Say, Jennifer, the issue is that the camera is NOT on his limited-use balcony or in the common area. It's in his separate interest condo unit.

I do not agree Dale should take down his camera unless he knows it's violation, i.e, he hasn't told us the whole story. From what Dale has told us, h's not in violation. Wait, Dale, she?
JenniferG11
(Texas)

Posts:436


07/08/2018 8:57 PM  
Posted By KerryL1 on 07/08/2018 8:36 PM
Say, Jennifer, the issue is that the camera is NOT on his limited-use balcony or in the common area. It's in his separate interest condo unit.

I do not agree Dale should take down his camera unless he knows it's violation, i.e, he hasn't told us the whole story. From what Dale has told us, h's not in violation. Wait, Dale, she?




I didn't say what OP should or should not do. I said what I personally would do. Unless I was 100% confident in eventually winning, I would personally not want the fines to keep coming. Here, they accumulate and grow legs, eventually becoming a lien or even foreclosure.

I would cure the violation if possible, and then have my attorney look into it. If my attorney said I am definitely good to go, I would put it back after he sent them a letter regarding my rights and stating that injunctive relief will be gained if they start fining again.
JenniferG11
(Texas)

Posts:436


07/08/2018 9:12 PM  
It's an Aesthetic Issue:

The issue of owners' installing security cameras has actually arisen at an association client of Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. Though the association opted not to have Drewes do in–depth legal research, he offered some general legal advice.

"I told them the association has the right to regulate cameras anywhere in public view," says Drewes. "That goes back to the aesthetic and architectural guidelines and the association's right to approve any change that would be visible from the exterior or the common area. It's probably a requirement in all associations that owners submit a request for approval to mount anything they're interested in installing."




This quote from this article is by no means an answer for the OPs particular association, but it's something to consider. If it can be SEEN from common areas, it is possible they can regulate that just as they can the color of window treatments or anything else in the windows that can be seen from common areas.



https://www.hoaleader.com/public/HOA-Owners-and-Security-Cameras-OK-or-No-Way.cfm
KerryL1
(California)

Posts:5656


07/08/2018 10:26 PM  
We can only hope that Dale provides with ARC and other language in her/his docs.

JanetB2
(Colorado)

Posts:4151


07/09/2018 1:23 PM  
Posted By DaleA on 07/08/2018 11:09 AM
I live in a large condo with a high crime rate and I placed a security camera fully within my unit interior overlooking my patio and which can oversee one of the common area paths.

The condo documents allow regulation of the limited common elements (patio) and the common elements, but the HOA is insistent that they can ban a camera placed inside my unit because it can see the common area, where they claim there is an "expectation of privacy."
I asked for an appeal to cite how the condo docs justify their regulation, but they refuse by silence to grant one or otherwise answer me now, but are answering with fines. The association while large (100+ units) is controlled by a tight group of insiders and we have only one owner's meeting about every 18 months (with the delays), and it's deliberately held at a time when almost no one can attend.

Does anyone in the know believe that common area regulations can be used to control the interior of the units in this manner?
Does this sound like a slam dunk if I sue in small claims over improper regulation by the HOA?
Any other thoughts?


Colorado is a One-Party State for recording telephone conversations or using audio recording devices. As long as YOU are a party to the conversation then you do not have to notify the other party you are recording. If “audio” is being done in a “public place” such as a restaurant, etc. then they must post signs noting the surveillance being done.

Here is a link with info from a company: https://homealarmreport.com/colorado-home-security/

Colorado also allows surveillance equipment per:

18-9-305. Exceptions
(1)  Nothing in sections 18-9-302 to 18-9-304 shall be interpreted to prevent a news agency, or an employee thereof, from using the accepted tools and equipment of that news medium in the course of reporting or investigating a public and newsworthy event; nor shall said sections prevent any person from using wiretapping or eavesdropping devices on his own premises for security or business purposes if reasonable notice of the use of such devices is given to the public.

The State Law allows any person to provide security on their own property for security. Now keep in mind the above is with regards to “wiretapping or eavesdropping”; therefore, if your Camera can record “SOUND” then you need to post or give reasonable notice if you have any “public” enter your dwelling where the camera is located. This is why many cameras will have a small sticker you can place on the inside of a window or sliding door on your home. You also need to be sure the camera does not point where can see inside another units windows, doors, etc. to encroach on their personal private space or invade their privacy. Common Area and other Public Spaces such as roads I would contend is not “Private”.


If it was me I would send my HOA a letter “Certified Return Receipt” (this is important for tracking ... when get the signed card back staple it to your copy of the letter sent) with the above statute section with the portion in bold also bold in the letter. I would ask them to point out where the CCR’s violate the State Statute and disallow your “Security Camera”. And if they do not provide such information to you or cease and recind their ridiculous fines they have imposed within 30 days, that you will be more than happy to consult with an attorney!!! And if you have to consult with an attorney and potentially file a lawsuit that the following statute could prevail. Keep it short, simple, and to the point and not off on any tangents.

38-33.3-123. Enforcement - limitation

(c)  In any civil action to enforce or defend the provisions of this article or of the declaration, bylaws, articles, or rules and regulations, the court shall award reasonable attorney fees, costs, and costs of collection to the prevailing party.
(d)  Notwithstanding paragraph (c) of this subsection (1), in connection with any claim in which a unit owner is alleged to have violated a provision of this article or of the declaration, bylaws, articles, or rules and regulations of the association and in which the court finds that the unit owner prevailed because the unit owner did not commit the alleged violation:
(I)  The court shall award the unit owner reasonable attorney fees and costs incurred in asserting or defending the claim; and
(II)  The court shall not award costs or attorney fees to the association. In addition, the association shall be precluded from allocating to the unit owner's account with the association any of the association's costs or attorney fees incurred in asserting or defending the claim.

Then sit back and wait for their response


This is why in CO before you file any lawsuit ... make absolutely sure you have a very high probability of WINNING!!! The HOA can be held liable for all attorney fees and cannot assess the individual(s) wronged for any of the fees. This is why if I had a neighbor suing my HOA and they were in the complete right according to law and documents ... I would join their lawsuit in a heartbeat.




KerryL1
(California)

Posts:5656


07/09/2018 1:41 PM  
Jennifer wrote: "If it can be SEEN from common areas, it is possible they can regulate that just as they can the color of window treatments or anything else in the windows that can be seen from common areas."

Our high rise condo of 200+ units does state limitations on window treatments' colors & materials in the CC&Rs. There are NO restrictions specified or implied about anything else that's visible from the exterior that might be at the interior of the windows except commercial signs. So large or small items on tables at the windows of our separate interest are of no concern.

I suppose it f something that's very offensive were in a window and we had complaints, the Board would take some kind of action. But that's never happened in 17years.

The only issue, especially based on janet's contribution, I see remaining for Dale is how the camera is affixed. If it's bolted to an exclusive (or limited) use window sill, the HOA might have a case.
KerryL1
(California)

Posts:5656


07/09/2018 1:41 PM  
Jennifer wrote: "If it can be SEEN from common areas, it is possible they can regulate that just as they can the color of window treatments or anything else in the windows that can be seen from common areas."

Our high rise condo of 200+ units does state limitations on window treatments' colors & materials in the CC&Rs. There are NO restrictions specified or implied about anything else that's visible from the exterior that might be at the interior of the windows except commercial signs. So large or small items on tables at the windows of our separate interest are of no concern.

I suppose it f something that's very offensive were in a window and we had complaints, the Board would take some kind of action. But that's never happened in 17years.

The only issue, especially based on janet's contribution, I see remaining for Dale is how the camera is affixed. If it's bolted to an exclusive (or limited) use window sill, the HOA might have a case.
JohnC46
(South Carolina)

Posts:7695


07/09/2018 1:46 PM  
From the link Janet posted:

Should you, and can you, get security cameras in Colorado? The short and easy answer here is a resounding “Yes!” Go ahead and do it! Put them all over your house as if you were preparing for the zombie apocalypse! The only stipulation here is one that we give for every state. Recording anyone against their knowledge is a crime, and recording anyone in an area that is not public, not your own property and for inappropriate purposes (you know exactly what we mean by that) an even worse crime. If you are going to put up security cameras everywhere, make sure that they are not pointed toward any windows in neighboring houses. Even accidentally catching someone next door stripping down to the buff could result in a criminal charge.

I believe if the OP installed a camera recording on her patio, not an issue. Recording anythign else is the issue.
GeorgeS21
(Florida)

Posts:569


07/09/2018 9:15 PM  
Uh -really?

Recording my street from my house is a crime?

Did I misunderstand?
JenniferG11
(Texas)

Posts:436


07/09/2018 10:29 PM  
Posted By GeorgeS21 on 07/09/2018 9:15 PM
Uh -really?

Recording my street from my house is a crime?





Your street is public, I assume. So, no. Unless you were recording audio as well.

JanetB2
(Colorado)

Posts:4151


07/11/2018 11:37 AM  
Posted By GeorgeS21 on 07/09/2018 9:15 PM
Uh -really?

Recording my street from my house is a crime?

Did I misunderstand?


Keep in mind we are discussing the OP’s State and which is Colorado. Your State will have different Laws and it may also be a Two-Party State. Always consider the OP’s state when looking or giving information.
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