Surveillance and the Law Maintaining Safety While Respecting Privacy

Secure.  The word has many meanings.  According to Google definitions, it can mean “to fix or attach something to something else.  It can mean to protect against threats or make safe.  Or it can mean to feel free from fear or anxiety.”  Perhaps that feeling of security is the single most important thing we can to feel in our homes.

Security is a major issue for condominium communities today.  The choice to buy into a condominium or other multifamily community overseen by an HOA rather than a private home may even be based on the desire of the purchaser to have peace of mind that security concerns are being addressed on a community-wide basis.  According to an article that appeared in CONDO.ca online, “Security was the number-one concern among people looking to purchase a condominium.” 

The state of surveillance and security has come a long way over the past few decades.  Where security issues used to rest on the employment of security personnel and perimeter fencing, today’s security arrangements are more hi-tech and complex.  Along with technology, has come an uptick in both legislation and litigation—much of it arising at the intersection of legitimate security concerns with equally legitimate concerns about propriety and privacy

Legal Positions

“Although safety is one of the primary concerns of most associations, under the (Illinois Condominium Property Act ICPA and Common Interest Community Association Act (CICAA) an association has no duty to be an ‘absolute insurer’ requiring them to provide security to its members,” says Sima Kirsch, an attorney who specializes in condominium law in Chicago.  “Even without a statutory mandate or language in the governing documents, a board is required to act within its fiduciary duty. A board is charged to act with reasonable or due care when the need arises to prevent harm from foreseeable danger and/or criminal activity, and failure to do so may result in a finding of breach of duty. A board is charged to act with reasonable or due care when it undertakes safety measures whether or not there is a duty - and failure to do so may result in a charge of negligence. A board may limit that duty with an amendment to the appropriate governing documents.”

“The ICPA does not mandate or specify that a condominium association must provide security to its residents,” says Michael C. Kim, of Michael C. Kim & Associates, another Chicago attorney.  “Most condominium declarations and documents do not say that the association has an obligation to provide security.  Having said that, I think as a practical matter, most associations are generally concerned with having premises that are safe - at least in the sense that any threats or incidents that come to the attention of the association needs to be addressed in one fashion or another.”

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