KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Cameras in rental house and giving advice to your customer
November 22, 2021
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Cameras in rental house and giving advice to your customer
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Ken,
I have a client who owns a second home who rents it out during the prime rental months. During the other times he uses it or allows friends and/or family to use it.
Before we sign a contract to install a surveillance system for him, he asked me to confirm if there are any laws about having security cameras on a house that will have tenants living in it.
I own the 2021 version of the ALL IN ONE Residential which we bought at the beginning of this year along with a few of your other documents.
Looking forward to hearing from you on this.
Best regards,
Dave
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Response
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Your inquiry raises a bunch of issues. We start with the fact that the Residential All in One, which is the appropriate contract in this sale, contains a provision that basically warns the customer to use all of the equipment, including surveillance equipment, camera and audio, lawfully. The contract does not, however, explain what is, and what is not, lawful. So the first question is, should you be advising the customer what is lawful? Or, more to the point, what is unlawful? Certainly surveillance of tenants or guests in one's home raises some serious issues, criminal and civil. When does the desire to keep an eye on your property become supplanted by other desires, some of which could be properly described as prurient?
I am mindful that you posed your question on behalf of your customer, not on your behalf. Though a customer may solicit your opinion on what is lawful surveillance when it comes to cameras and audio, and may consider you as knowledgeable on the subject since you sell and install the equipment, it's important that your customer know that you aren't a legal expert on the subject. In fact, your role, selling, installing, monitoring and storage and retrieval, is still, theoretically, different than your customer's issues. I say theoretically because you are not supposed to be viewing or listening or misusing the data, and if you do, you have all the same liability that your customer faces, and more. So, avoid offering legal opinion on equipment use.
A more common inquiry from alarm dealers is whether they can install and monitor the surveillance equipment. The answer may be very similar, but it's not identical. I think an alarm dealer should rarely, if ever, install equipment where there is a specific legal prohibition, or it's a likely improper place, such as bathrooms and dressing areas. But there may be reasons for such placement and your customer may explain that the master bedroom closets, where a safe may be installed, needs surveillance, or a bedroom is occupied by someone who requires surveillance.
There are of course other areas in the house that don't raise red flags once you get passed the idea of any surveillance in the house. Living room, kitchen and other areas of the house that one may consider common areas come to mind; how about the garage or basement area or outside cameras viewing the patio, pool or grounds?
Just to point out the obvious, camera and audio in the most private places could end up not picking up anything intrusive, while cameras in areas that would be considered much less private places pick up the most lurid video and audio, that when circulated on social media, would be quite unlawful or subject to civil grievance. This is where the issue of providing advice to your customer becomes risky. A perfectly lawful installation can end up being used for an unlawful purpose.
My advice is that you can install the equipment inside and outside in appropriate places. You can advise your customer that the installation is proper and that the data needs to be guarded and used appropriately. Also, your customer should include a provision in the lease or license agreement for occupancy a consent for the surveillance equipment, and I further suggest that covert equipment not be used.
I suspect a lot of you may say you just don't install the equipment because you don't want to get involved with potential misuse, and I won't disagree with your decision. However, I think you can engage in such business and still remain within proper and lawful bounds. Use the All in One and don't make other representations that you could end up regretting.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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