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 community 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.
“Any rule adopted by a board must be reasonable and rationally related to the objective to be served,” explains attorney Anne P. Ward of the law firm of Ehrlich, Petriello, Gudin, & Plaza, P.C in Newark, New Jersey. “It is a given that owners of units must relinquish '…a certain degree of freedom of choice which they might otherwise enjoy with separate privately owned property.' A “balancing test” is used weighing the rights of an owner against those of the entire community to determine the reasonableness of any rule.”
The “Rules” of Privacy
In all states, a person has the right against unreasonable, substantial or serious interference with his or her privacy. Above and beyond this mandate, there are federal and state electronic records laws, health privacy laws, laws regulating what information may be released by the government and by employers and laws regarding the unauthorized use of a person’s name or image.
One of the perks of living in a community association or townhome community is that it offers residents the ability to build equity 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. 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. “Most governing documents such as the master deed, declaration, or bylaws give the association a right of access to the unit or dwelling for maintenance, inspection, and other related reasons,” says attorney Mark Imbriani of Somerville, New Jersey. “However, except in the case of an actual emergency involving a real and immediate threat to person or property, the right of access can only be exercised on notice and with the owner’s consent. Entering a unit without permission is an invasion of the owner’s privacy.”