Should your HOA install license plate cameras?
It is estimated that at least 400,000 neighborhoods throughout the United States have installed automated license plate readers. Automated license plate readers are high-speed cameras that are mounted on street poles, streetlights, entrances, gatehouses or other areas in which automobiles will enter or exit a condominium or subdivision. Automated license plate readers can be an important safety tool as it is estimated that 70% of all crimes involve a vehicle. These cameras can capture license plate numbers, along with the date and time that an automobile was in a specific location. The information captured by the cameras is uploaded to a server and a condominium association or homeowners association can use the information for its own private purposes, such as bylaw enforcement, or it can provide the information to law enforcement. However, as discussed below, community associations should be prepared to deal with several issues that may arise as a result of using this new technology.
Is it legal to install license plate cameras?
As a practical matter, it is advisable that a homeowners association inform its membership that cameras are being installed or install signs alerting the owners that the area is now under surveillance. While owners may raise concerns about privacy, both state and federal courts have held that there is no reasonable expectation of privacy in license plate information as this information is in the public domain. Specifically, in Michigan the Court of Appeals has held that,
A police officer may properly run a computer check of a license plate number in plain view even if no traffic violation is observed and there is no other information to suggest that a crime has been or is being committed. That is, there is no probable cause or articulable suspicion requirement to run a computer check of a license plate number in which there is no expectation of privacy.
People v Jones, 260 Mich App 424, 427–28; 678 NW2d 627, 630 (2004). See also MCL 750.539a (The Michigan penal code prohibits recording devices to be installed in private places. However, there is no prohibition on installing cameras in public places.)
The Sixth Circuit Court of Appeals has also held that there is no reasonable expectation of privacy in license plate information under the federal constitution as well. Specifically,
[I]t is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile. The VIN’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a “search.” Logically, this reasoning extends to a legally-required identifier located outside the vehicle.
No argument can be made that a motorist seeks to keep the information on his license plate private. The very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identifying information to law enforcement officials and others.
United States v Ellison, 462 F3d 557, 561 (6th Cir, 2006) (citations omitted).
Accordingly, given that a governmental entity can collect license plate information, as well as any other information that could be gleaned from public view of an automobile, an owner would likely be unsuccessful in arguing that a private entity, such as a condominium association or homeowners association, could not likewise collect such information.
Are there any liability issues associated with license plate cameras in HOA’s?
As a general rule, condominium and homeowners associations do not have an obligation to install any type of security cameras, including automated license plate readers. However, if cameras are installed, a community association may have a duty to maintain the cameras. Specifically, in the context of providing security guards, the Michigan Court of Appeals has held as follows:
Further, although defendant, generally, may have had no duty to provide parking lot security guards for the tenants of the apartment complex, if he voluntarily assumed the duty to provide security, a cause of action could exist if he was negligent in the discharge of this voluntarily assumed duty.
Holland v Liedel, 197 Mich App 60, 64–65; 494 NW2d 772, 775 (1992).
However, the duty to maintain cameras likely only exists if an owner can demonstrate that an owner suffered damage as a result of detrimentally relying on the fact that a security camera was operational. Specifically, as noted by one federal court:
Plaintiffs have provided no evidence that the Gordons detrimentally relied on the monitoring of the Association’s surveillance cameras. Not only does the Ford Plantation’s Declaration of Covenants, Conditions, and Restrictions implicitly state that residents should not rely upon any security provided by the Association, but, more importantly, the Gordons were unaware, until after the fire, that a camera had been recording their home. (J. Gordon Dep. at 28; N. Gordon Dep. at 28.)
Great N Ins Co v Ruiz, 688 F Supp 2d 1362, 1379 (SD Ga, 2010).
Accordingly, if a condominium association installs security cameras or automated license plate readers, it should consider amending its master deed and condominium bylaws pursuant to MCL 559.190. An amendment to the condominium documents should include a disclaimer that a co-owner is not entitled to rely on security measures provided by the condominium as such security measures may not always prove effective. In the context of a homeowners associations, the declaration should be amended to include a similar disclaimer.
In addition to concerns about whether the automated license plate readers will be properly maintained, community associations also need to ensure that appropriate cyber and data security protections are in place. Specifically, property managers and board members will need to adopt rules that protect the information that is downloaded by using the cameras. Specifically, items that should be addressed are as follows:
- Who is allowed to access the information?
- Where will the information be saved? Is the information encrypted and stored in a secure server?
- How long will the information be saved?
- Will the information be voluntarily shared with law enforcement if requested?
- Will a third-party company be hired to monitor and maintain the cameras?
- Does the association’s insurance policy provide adequate coverage if an owner is damaged as a result of a non-operational camera or if there is a security breach and the association’s server is hacked?
Automated license plate readers can be a useful tool in deterring crime or catching criminals. Similarly, automated license plate readers and other security cameras may be useful to a homeowners association in providing evidence of bylaw violations as well. As indicated above, there is nothing illegal about installing these cameras in public places and the association would have the right to use the information that it obtains as it sees fit. However, if a community association installs an automated license plate reader, it should have a plan in place to maintain the cameras and ensure the security of the data that is being collected in order to avoid potential liability. Similarly, it should consider amending its governing documents to avoid potential liability associated related to operating an automated license plate reader system.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the Community Associations Institute’s College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine in 2018 and 2019, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan from Hirzel Law’s offices in Farmington and Traverse City. He may be reached at (248) 478-1800 or [email protected].