The rise of wireless, affordable security and surveillance cameras and systems (such as the popular Ring and Nest systems) has encouraged many homeowners in communities across the country to install cameras and systems in and around their homes. Combining these cameras and systems with the ability to access the videos from a cell phone or tablet, homeowners can record and view their property from anywhere in the world. But what does the law state about cameras and security systems, and what happens if a property owners’ association wants to do the same thing on association owned property?

The implementation of security cameras and surveillance systems by property owners’ associations has been a point of controversy over the past few years. Many associations welcome the idea due to the marketed benefits cameras may provide, such as preserving common areas, discouraging vandalism, a sense of security for residents (possibly misplaced) and/or providing evidence of the failure of an entry gate operation. However, the legality relating to cameras has raised concerns and introduced new dilemmas for associations. If your association is thinking about adding a security/surveillance system to monitor common areas, we want to ensure you understand the statutory issues surrounding security camera use in deed restricted communities in both single-family homes and condominiums.

 “Alarm System” Definition

The Texas Occupations Code offers a definition for alarm system that includes:

(A) electronic equipment and devices designed to detect or signal:

(i) an unauthorized entry or attempted entry of a person or object into a residence, business, or area monitored by the system; or

(ii) the occurrence of a robbery or other emergency;

(B) electronic equipment and devices using a computer or data processor designed to control the access of a person, vehicle, or object through a door, gate, or entrance into the controlled area of a residence or business; or

(C) a television camera or still camera system that:

(i) records or archives images of property or individuals in a public or private area of a residence or business; or

(ii) is monitored by security personnel or services (Tex. Occ. Code §1702.002(1)(A-C)).

The term “alarm system” does not include a telephone entry system, an operator for opening or closing a residential or commercial gate or door, or an accessory used only to activate a gate or door, if the system, operator, or accessory is not monitored by security personnel or a security service and does not send a signal to which law enforcement or emergency services respond (Tex. Occ. Code §1702.002(1-a)).

If an association wishes to obtain surveillance cameras for purposes such as to monitor ingress and egress in common areas of a community (i.e. pool recreation center), then it would appear that the camera system would fall under the definition of “alarm system” and the exceptions listed above would be inapplicable. Thus, it is likely an association’s security camera system would be subject to Chapter 1702 of the Texas Occupations Code (the “Code”).

Licensing

According to the Code, unless a person holds a license as a security services contractor, a person may not act as an alarm system company or perform any services of an alarm systems company (Tex. Occ. Code §1702.102(a)(1- 2)). The Code further states that a person acts as an alarm system company if he/she sells, installs, services, monitors or responds to an alarm system or detection device (Tex. Occ. Code §1702.105(a)(emphasis added)). The term “Person” is defined in Section 1702.002 and includes an individual, firm, association, company, partnership, corporation, nonprofit organization, institution, or similar entity (Tex. Occ. Code §1702.002(16)). The Code does not define the term “monitor”.

If an association wishes to maintain private surveillance cameras which would allow board members to view foot traffic either live or via recordings and other activity within a neighborhood or on common areas, then it may be considered “monitoring” under the Code. If board members are “monitoring” cameras and are not licensed, as provided under the Code, then this activity may constitute a violation. This may also be the case if the association simply installs and services the security cameras.

Given that an association’s security camera system is likely subject to the Code, it may be necessary for the association or its board members to obtain the requisite license in order to maintain the system without violating the Code. Alternatively, the association has the option of employing the services of a licensed security team to install, monitor and service the surveillance cameras.

Possible Exception

There is an exception noted under Chapter 1702 of the Texas Occupations Code. The provision states that the chapter does not apply to:

• a person who owns and installs a burglar detection or alarm device on the person’s own property or, if the person does not charge for the device or the installation, installs the device for the protection of the person’s personal property located on another person’s property and does not, as a normal business practice, install the devices on the property of another (Tex. Occ. Code §1702.328(1)).

While the above exception may offer statutory protection for homeowners on their own property, it could be argued that an association’s surveillance camera system would be considered a “burglar detection or alarm device” that could be installed on its own property (i.e. the common areas). Therefore, the security system would not be subject to the Code. Nonetheless, it is unlikely that an association would be “installing” the cameras on its own as required by the provision above. Furthermore, the Code provides hefty penalties for violations of the provisions therein. Section 1702.381(a) provides that a person who violates the statute and does not have a license or license application pending may be fined up to $10,000 for each violation (Tex. Occ. Code §1702.381(a)).

Our firm has discussed this issue on multiple occasions with the Texas Department of Public Safety; however, we were never provided with a firm answer as to whether the exception above applies to property owners’ associations. Nonetheless, after speaking with the leadership of the private security department, we understand that both entities and individuals may obtain the requisite license. For more information, we recommend contacting the Texas Department of Public Safety, Regulatory Services Division/Private Security Department.

Considerations

There are many marketed benefits to the use of security cameras in a community. Security cameras may be utilized to help protect property, deter crime and monitor gate operation. Nonetheless, in addition to the penalties described herein, there may also be ethical concerns associated with security camera monitoring by the association and its board members if a license has not been acquired. Moreover, there may be community backlash over the idea that board members are watching owners’ movement in common areas or other locations in the community. These issues should be considered before an association approves use of security cameras within a neighborhood. An association should also consider the issue of requests by owners to view the images captured by the cameras. The images may be an association record and subject to review by the membership as set forth in the Business Organizations Code as well as Chapter 209 of the Texas Property Code.

In summary, if an association wishes to install security/ surveillance cameras on property, the association should have its attorney review the provisions under Chapter 1702 of the Texas Occupations Code beforehand. The definition of “alarm system” under the statute appears to encompass the traditional security camera technology most associations are seeking (i.e. video recording cameras that may be monitored). Although there is an argument that Chapter 1702 may not apply to an association’s installation and monitoring of security cameras pursuant to Section 1702.328(1) provided above, it is unlikely that an association would install cameras itself without utilization of a contractor hired for such purpose. Ultimately, an association or its board members should obtain a license in accordance with the statute to ensure the association is not penalized in the future.