Are surveillance cameras allowed on the outside of rental properties?

QUESTION: My firm handles property management of vacation rentals on the coast. Some of our property owner clients have outdoor security cameras in place. Is it legal for these cameras to be operating while tenants are occupying the property? Or do the cameras violate the tenants’ right to privacy?

ANSWER: While exterior surveillance cameras are legal, we would discourage the use of such cameras on the exterior of rental properties without disclosure to, and consent of, the tenants.

Increasingly, surveillance cameras are advertised and used as part of home security systems, and there is nothing illegal about them. In recent years, language has been added to the standard listing agreement (Form 101) and the standard buyer agency agreement (Form 201) addressing the use of video cameras. For example, in paragraph 10 of the listing agreement, property owners are advised that while no audio surveillance device may be turned on during any showings, open houses or inspections, a video surveillance device may be used as long as the placement does not violate a visitor’s reasonable expectation of privacy. Similarly, paragraph 16 of the buyer agency agreement warns buyers that they may be under video surveillance during their examination of any property.

Visitors to listed properties are not the same as tenants. At this point, the standard property management agreements for long-term rentals (Form 401) and vacation rentals (Form 402) make no mention of surveillance devices. Nevertheless, similar considerations apply to long-term and vacation rental properties. The key is the tenant’s “reasonable expectation of privacy.” In our view, tenants can reasonably expect privacy inside their rented premises. Therefore, owners should not place security cameras anywhere inside a rental property.

We can imagine many circumstances in which tenants would also expect privacy outside their homes. For example, if the rental property is remote, or is surrounded by a privacy fence or hedge, tenants could reasonably expect that their outdoor activities would remain private. To avoid violating a tenant’s right to privacy, agents who manage rental properties for owners who wish to use surveillance cameras should inform those owners that the use of outdoor cameras must be disclosed to and agreed to by those tenants at the time the lease is signed. Following this practice should avoid future claims for invasion of privacy.

Release Date: 05/24/2018