By Michael J. Gelfand, Esq. / Published August 2021
Editor’s Note: The first topic addressed here on security cameras was taken from the May Memorandum produced by Gelfand & Arpe P.A. The other three topics that are discussed come from the firm’s June Memorandum.
In this day and age more neighbors and others have installed security cameras and acquired drones. Use of both have led to intense community conflict leading to the question of whether the use of a security camera to record activities occurring within the backyard of a home surrounded by a privacy wall or fence amounts to invasion of privacy.
A recent Florida appellate court decision ruled that a trial court erred in denying a motion for preliminary temporary injunction in an action for invasion of privacy. The facts in Jackman v. Swartz, 46 Fla. L. Weekly D 674 (Fla. 2nd DCA, March 26, 2021), indicate that following a border dispute between neighboring property owners, the Jackmans installed a six-foot privacy fence enclosing the back portion of their property.
Thereafter, the Swartzes installed a twenty-five-foot-high rooftop camera which could see over the Jackmans’ privacy wall into a portion of their backyard, including the edge of the Jackmans’ lanai. The camera could see the side door to the Jackmans’ home but could not see beyond the threshold of the door into the house when the door was open.
The Jackmans sued the Swartzes for invasion of privacy and sought a temporary injunction. The trial court denied the Jackmans’ motion for preliminary injunction on the grounds that the Jackmans failed to show that they could succeed on their claim for invasion of privacy because they failed to prove that the recordings from the security camera were published to anyone.
The Florida appellate court disagreed, finding that the trial court erred in not granting the motion for temporary injunction. The court explained that intrusion upon seclusion is where a person “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns…if the intrusion would be highly offensive to a reasonable person.”
Importantly, the court noted that this type of claim of invasion of privacy does not require that the Jackmans establish that the videos from the security camera were shown to anyone. The court stated:
“[T]here is a reasonable expectation of privacy within the curtilage of a residence, and we conclude that there is a material difference between occasionally viewing the activities within a neighbor’s backyard that are observable without peering over a privacy fence and erecting a camera to see over a privacy fence to thereafter surveil and record those activities on a consistent basis.”
The court noted, however, that due to the growing number of drones and home surveillance cameras, there is uncertainty about what surveillance activities can be maintained without constituting the invasion of privacy of another person.
This decision is important for at least two reasons. First, the decision explains how difficult it is at times for the law to keep up with technology. Security cameras are used more and more, not only by individuals but also by associations for safety reasons. Second, the decision starts to create a line where a camera may be too intrusive, specifically in a non-public area with an expectation of privacy, especially where there is a physical barrier otherwise preventing observation.
Before installing cameras, it is important for an association to anticipate where the camera is directed so that an association does not find itself facing an invasion of privacy lawsuit!
Hold on tight! Do not get caught with insufficient notice and get sent back to “GO” and fail to collect $200 or anything else until you start over. This may be worse than landing on “Go to Jail” in Monopoly.
Attentive readers will recall the firm’s May 2021 Memorandum to Clients that gave a quick and early look at Senate Bill 46/House Bill 615, anticipating that the bill would be signed into law and be effective July 1, 2021, impacting assessment collection procedures for Florida condominium, homeowners, and cooperative associations.
Florida community associations will likely want to immediately change their assessment collection practices.
Although this may mean starting over for collections that are in process, it is suggested that associations consider providing the new statutory notices of late assessment now to discourage owners from raising as a defense that the association did not comply with the new provisions.
Importantly, the delinquency notice must be sent by first-class mail to the owners at his or her last address as reflected in the association’s records, and if the address is not the property address, then the notices must also be sent by first-class mail to the property address.
It is not uncommon for someone to trip and fall on association property, sustaining an injury. What may be less common, but perhaps with greater frequency, are assaults occurring on association property. Will a Florida association have to pay for a claim if someone is assaulted on common property? Maybe so, depending on what exclusions are contained in the association’s insurance policy!
Raising warning flags for Florida communities is a recent Florida appellate court decision which concluded that an insurer did not have to defend a business policy holder against a claim of assault and battery on the business’s property. The facts in Sierra Auto Center Inc. v. Granada Insurance Co., 46 Fla. L. Weekly D 778 (Fla. 3rd DCA, April 7, 2021), reveal that Jaime Tejada sued Sierra Auto Center for negligence after he was battered on the Sierra Auto Center’s business premises. Tejada alleged that Sierra Auto Center failed to provide adequate security.
Sierra Auto Center sought coverage for the negligence action from its insurer, Granada Insurance Co. Because the policy contained an exclusion for assault and battery, Granada filed a declaratory judgment action seeking a declaration that it had no duty to defend Sierra Auto Center for claims brought by Tejada in the underlying negligence action. The trial court granted summary judgment for the insurer.
The Florida appellate court agreed with the decision of the trial court, finding that the insurer had no duty to defend Sierra Auto Center in the negligence action arising out of an assault and battery which occurred on its premises because the insurance policy issued to Sierra Auto Center contained an express exclusion for assault and battery. “It is well-established precedent that where the claimant’s injuries arise out of or result from a physical altercation, an assault and battery exclusion—such as the exclusion in the Granada policy—bars coverage for the claim against the insured,” the court stated.
This case highlights the importance for associations to carefully review exclusions in insurance policies to prevent any surprises! Do not wait until after an incident to review the policy and then find that there is no coverage!
No coverage for claims seems to repeat in the courts this month. In yet another recent case dealing with insurance, the court addressed the issue of whether the insured breached a policy by failing to comply with the policy’s option to repair provision. The facts in Castro v. People’s Trust Insurance Co., 46 Fla. L. Weekly D 961 (Fla. 4th DCA, April 28, 2021), indicate that the homeowner was insured by People’s Trust. The policy contained a so-called “preferred contractor endorsement,” giving the insurer the option to use its own so-called “rapid response team” to repair any damages.
After the homeowner filed a claim for water damage, the insurer accepted coverage, invoked its option to use rapid response for the repairs, and notified the homeowner that it was responsible for paying rapid response a $2,500 deductible. The homeowner did not pay the deductible and did not execute a work authorization for the repairs.
The insurer sued the homeowner seeking a judicial declaration that the homeowner breached the policy by failing to allow rapid response to make the repairs. The trial court granted summary judgment for the insurer, finding that the homeowner breached the insurance policy by failing to comply with the policy’s option to repair provision.
The Florida appellate court affirmed, finding that the repair provision of the insurance policy was enforceable. The court noted that the “election-to-repair” endorsement has been an established option for numerous residential insurance policies in Florida for several years. The court also held that the homeowner’s failure to execute the work authorization and to pay the deductible breached the policy’s option to repair.
The lesson from this case: beware what is in your insurance policy. With an option to repair provision, not only does the insurer have the right to pick the company to make the repairs, but the insured has to pay the company making the repairs the deductible!
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.