Security Cameras in Michigan Condominium Projects

Joe Wloszek_8x10@300Whether inside a grocery store, at a gas station or even in your neighborhood, security cameras are everywhere in modern society.  As technology evolves and cheaper and better cameras come onto the market each year, Michigan condominiums are experiencing an increase in surveillance and/or security camera usage.  Security cameras raise significant legal questions that impact decisions made by the Board of Directors and co-owners.  When considering the pros/cons of security cameras, some common questions arise:

  1. Does the Board of Directors have authority to install security cameras?  If so, where?
  2. Do the governing documents allow co-owners to install security cameras through a modification/alteration agreement?  If so, where?
  3. Who is in charge of the security cameras and who has access to the feeds?
  4. Do the security cameras look into other co-owners’ units?
  5. Do the security cameras overlook the community pool?
  6. Do the security cameras watch children at a playground or school bus stop?
  7. Are the security cameras real or “dummy” cameras only there to deter potential criminals?
  8. Do the security cameras have sound capability?
  9. Are the security cameras fixed in place or do the cameras have 360 degree viewing at any given time?
  10. Are the security cameras motion activated?
  11. Who pays for the maintenance, repair and replacement of the security cameras?
  12. Who maintains insurance for the security cameras?
  13. Do the security cameras monitor and record or just monitor?
  14. What happens if a Board of Directors approves a security camera and the co-owner uses it inappropriately?

The answers to these questions impact whether security cameras may be appropriate in any given area of the condominium project or, alternatively, reflect a violation of the governing documents.

Common Locations for Security Cameras

While security cameras may be located at various locations in a condominium project, some locations are more common than others.  First, security cameras may overlook common entrances or, if applicable, the guard shack and/or security gate.  This allows the association to monitor all incoming and outgoing vehicles on any given day.  As an example, after a rash of car break-ins and tires being stolen, one association was able to assist law enforcement in narrowing the number of potential suspects by reviewing what vehicles entered and exited a community during a specific time period.  Second, some associations place security cameras overlooking community dumpsters.  The cost of emptying community dumpsters is paid for by the co-owners as part of their monthly assessment and the security cameras reduced the likelihood of any illegal dumping of trash from nonco-owners.   Third, security cameras may monitor recreational facilities or the entrance to the community pool.  As an example, if a co-owner is using a security card to allow 50 friends to throw a party at the pool, the Association may wish to monitor and prevent such festivities in the future.  Fourth, some co-owners seek to use security cameras for safety reasons on the outside or even on the inside of their units.  For example, the victim of a sexual assault or a burglary may want additional security in the form of security cameras.

Legal Issues Surrounding Security Cameras

Security cameras are often utilized to reduce theft, deter vandalism, discover Bylaw violations, and monitor visitors and trespassers.  Below are some examples of legal issues that may arise due to security cameras in a condominium.

  1. Window Peeper or “Peeping Tom”

The Michigan Penal Code, specifically MCL 750.167(1)(c), considers a “window peeper” as a disorderly person.  Simply, one co-owner should not be able to video monitor the inside of another co-owner’s unit.  This is particularly serious when the unit being monitored has small children.  The Association should be weary of granting permission to a co-owner to have a security camera without knowing what such a security camera monitors.

  1. Invasion of Privacy

Michigan has long recognized the common-law tort of invasion of privacy. Lewis v LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003); see also DeMay v. Roberts, 46 Mich. 160; 9 NW 146 (1881).  The invasion of privacy tort has evolved into four distinct tort theories: (1) the intrusion upon another’s seclusion or solitude, or into another’s private affairs; (2) a public disclosure of private facts about the individual; (3) publicity that places someone in a false light in the public eye; and (4) the appropriation of another’s likeness for the defendant’s advantage.” Lewis, 258 Mich App at 193.

Under the first theory, there are three necessary elements to establish a case of intrusion upon seclusion: (1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable person. Doe v. Mills, 212 Mich App 73, 88; 536 NW2d 824 (1995).

As discussed above, an association may install security cameras in numerous areas, however the association may not set up security cameras in any area where a co-owner has a reasonable expectation of privacy.  For example, community locker rooms and community bathrooms may be off limits to security cameras depending on the location of the security cameras and the expectation of privacy of those individuals being monitored.  Essentially, a security camera monitoring the entrance to a community locker room will likely be treated differently than a security camera inside the women’s locker room changing area.

  1. Nuisance 

Nuisance is an interference with a landowner’s use and enjoyment of their land. Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 59; 602 NW2d 215 (1999).  A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.  Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992).  Nuisances may be either per se or per accidens, that is, at law or in fact. McDowell v Detroit, 264 Mich App 337, 348-349; 690 NW2d 513 (2004). A nuisance in fact is a nuisance ‘by reason of circumstances and surroundings.’ Id. at 349. To establish the existence of a nuisance in fact, a plaintiff must show ‘significant harm resulting from the defendant’s unreasonable interference with the use or enjoyment of the property.’ Id.; see, also, Adkins, supra at 304.

Most condominium bylaws prohibit any activity that is a nuisance to other co-owners or detrimentally impacts the aesthetics of the condominium project.  In its discretion, a Board of Directors may decide to allow a co-owner to install 1-2 security cameras at a unit for security reasons, but not allow 8-10 security cameras under various nuisance theories.  If a co-owner looks into other co-owners’ units or if a co-owner uses security cameras to monitor children, the Board of Directors may wish to restrict the number and location of the security cameras.

  1. Wiretapping

The Michigan Penal Code, specifically MCL 750.539c, states:

Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

The Michigan Penal Code, specifically MCL 750.539d, states in relevant part:

(1) Except as otherwise provided in this section, a person shall not do either of the following:

(a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

(b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

Any security cameras that record sound must be closely scrutinized to determine whether the security cameras run afoul of the Michigan wiretapping statute.

  1. Fake or “Dummy” Security Cameras

Some associations have installed fake or “dummy” security cameras to deter would be criminals.  Co-owners may have a false sense of security that a particular area is being monitored.  From a legal perspective, there is a growing body of law commonly called “negligent security lawsuits.”  Negligent security is an offshoot of premises liability whereby the victim attempts to hold the owner of the property liable for the actions of a third party.  As an example, a man is burglarized below what he believes to be an active security camera, when in actuality, the camera was a “dummy” camera.  Ultimately, having inoperable security cameras may expose the association to liability should a burglary, rape, assault or similar circumstances occur.


When considering the ramifications of allowing security cameras, the Board of Directors should use its business judgment.  Often times, the Board of Directors will wish to implement reasonable Rules and Regulations regarding the usage of security cameras and/or enter into an alteration/modification agreement with a co-owner to limit the association’s potential exposure should any problems arise.

Joe Wloszek is an attorney in our Livonia office where he focuses his practice on condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation.  He may be reached at (734) 261-2400 or


Acho Speaks at NFL Alumni Annual Event

IMG_0209Jim Acho appeared at the NFL Alumni Annual dinner at Tam O’Shanter Country Club on June 12, 2017. Jim spoke to retired players and gave an update on the new Baseline Assessment Plan implemented pursuant to the NFL Concussion Class Action Settlement, of which Jim and CMDA are one of the law firms involved.

Photo: Jim Acho with Lions legends and CMDA clients Mike Lucci and Eric Hipple. Lucci was the middle linebacker on the Cleveland Browns last championship team of 1963 and is a member of several Halls of Fame. Hipple, a former quarterback, now runs the Eisenhower Center for military vets suffering with PTSD.

Cross Participates in Pro Bono Expungement Clinic

Matt CrossMatt Cross, an attorney in our Traverse City office, recently participated in a pro bono expungement clinic to clear old criminal convictions.  The clinic is designed to remove barriers to employment and housing for people with old felony and misdemeanor convictions.

Mr. Cross met with participants at no charge to discuss their situation and assisted them with completing legal forms.  Michigan law allows individuals to set aside some, but not all, types of convictions when more than five years have passed since the sentence has been served and probation completed.

The clinic was a partnership between Legal Services of Northern Michigan, Conflict Resolution Services, the Grand Traverse-Leelanau-Antrim Bar Association, and Women Lawyers Association.

Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or

Cautionary Tale – Employee’s Profanity Laced Facebook Post is Protected Activity in a Recent Federal Court Decision

Beth Rae ODonnellOn April 21, 2017, the Second Circuit Court of appeals in NLRB v. Pier Sixty, LLC, 855 F.3d 115 (2nd Cir. 2017), upheld the National Labor Relations Board’s conclusion that a terminated employee’s profanity based comments about his supervisor on Facebook were not so egregious as to exceed protection under the National Labor Relations Act (NLRA or Act).

Pier Sixty operates a catering company in New York City.  In 2011, many of its service employees began seeking union representation.  Both sides agreed that a tense union organizing campaign occurred which included threats from management that employees could be penalized or discharged for union activities.

Two days before the election, on October 25, 2011, Bob McSweeney, a supervisor, gave Hernan Perez, a server, directions in a harsh tone and told him to stop “chitchatting.”  About 45 minutes later, during an authorized break from work, Perez posted with his iPhone on his Facebook page:  “Bob is such a NASTY MOTHER FXXXER don’t know how to talk to people!!! Fxxk his mother and his entire Fxxxing family!!!  What a LOSER!!! VOTE YES for the UNION!!!”

“Bob” in the message was Perez’s supervisor.  Ten of Perez’s coworkers were his friends on Facebook.  Pier Sixty’s employees voted to unionize on October 27, 2011.  Perez took the Facebook post down on October 28, 2011.  Management of Pier Sixty learned of the Facebook post and fired Perez on November 9, 2011.  Perez filed a charge with the NLRB alleging he had been fired for “protected, concerted activities.” The Union organizer for the employees filed a second charge alleging unfair labor practices and that an employer is prohibited from discharging employees for participating in protected, union-related activity.

An Administrative Law Judge issued a decision in favor of Perez and following an appeal by Pier Sixty, the NLRB affirmed.  Pier Sixty filed a Petition for review with the Second Circuit.

The Second Circuit upheld the Board’s decision under a deferential standard of review applied for appeals of Board decisions in unfair labor practice cases.  The Court held that even though Perez’s message contained vulgar attacks on his supervisor and his supervisor’s family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the upcoming union election.  The Court noted that Pier Sixty had demonstrated hostility toward union activities and had threatened to rescind benefits or fire employees who voted for union representation.  Further, the Court found it persuasive that supervisors and employees alike frequently used profanity in the workplace for which no one was ever disciplined.  Finally, although the Court noted that the post was vulgar and inappropriate, the comment was not the equivalent to a “public outburst” in the presence of customers and could reasonably be distinguished for other cases of “opprobrious conduct.”

Although the Court ruled against the employer, the Court did note that it was analyzing the specific facts presented, and stated an employee engaged in protected activity could act in a way that would result in the loss of protection under the NLRA.  The Court gave deference to the findings of the Board but also stated that the case sits at the “outer-bounds” of protected, union-related comments.

This illustrates that employers must carefully examine all the facts and circumstances surrounding an employee’s social media activities when deciding whether a posting is related to workplace issues, and if it does, whether a posting is so egregious so as to lose NLRA protection.  The case also stands for the proposition that discipline was not evenly applied and this certainly worked against the employer. Finally, while it is key that social media policies not inhibit concerted activity, employers still have not lost the right to reasonably discipline employees who engage in abusive conduct that harms morale, particularly if it constitutes outrageous activity or discloses company trade secrets.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or

Hallaq Wins First Motion for Summary Disposition

brandan-hallaq-profile-photoCongratulations to Brandan Hallaq, Esq. for winning his first Motion for Summary Disposition before the Honorable Archie Brown in the Washtenaw County Circuit Court. Mr. Hallaq successfully drafted and argued the motion on behalf of a condominium association against a co-owner for numerous bylaw infractions and violations of the Michigan Condominium Act. In addition to obtaining an order compelling the co-owner to comply with the condominium documents, the Court granted an award of attorneys fees in the association’s favor.

Mr. Hallaq graduated with his Juris Doctor, cum laude, from Wayne State University Law School in May 2016 before joining our Livonia office.  Mr. Hallaq focuses his practice in the areas of community association, business, and real estate law.  He may be reached at (734) 261-2400 or

Congratulations Brandan!

The Five Most Common Mistakes an Elder Law Attorney Sees

Schuster photo for websiteEverybody knows of the problems of aging adults, however few give it the serious attention it needs.  The failure to address these issues appropriately can result in serious financial distress and/or a loss of independence.  I have outlined five common mistakes made by aging adults and tips on how to avoid making them.

First Mistake: Doing nothing
If you do nothing to deal with aging you have a good chance of lifetime probate. That means the probate court must appoint a guardian or conservator to handle your affairs.  One study found that the number one cause of probate guardianship was the need for emergency medical treatment when the patient cannot give consent.

The cost of probate over your lifetime can be enormous and you lose control over your life.   It’s like being a child again.

Second Mistake: Only planning for death
Many people think they are “all set” if they have a will. A will is only effective at death.  We are talking about lifetime issues, not what happens after we die. For example, in a hospital or a nursing home an empowered advocate can mean the difference between life and death.

Third Mistake: Joint property with children
Many seniors think they are all set if they have a daughter or son on their bank accounts with them.  The thinking goes “that way they can pay the bills if I cannot.”  There are many problems with joint accounts.

The first is that it solves only one problem of aging: paying bills. Joint accounts give the child no ability to help the parent in any other way.  If the child calls the insurance company they will ask “Are you the insured?” The child will say “No. But, I’m joint on the bank account.” That goes nowhere.

The more serious problem is the risk of loss of life savings to a child who has financial bad luck.  The same can go for the house.  If a child is a joint owner, then if the child is sued, divorced or goes in bankruptcy so does your property.

And finally, joint accounts can be the source of probate battles after the death. What if a parent makes an account joint with one child? After the parent dies, will the child share it with the other children?  What if the parent’s will says to share equally?  Unfortunately there are no absolute legal rules and questions like these are often answered after a bitter battle in probate court.

Fourth Mistake: Paying employees under the table
People who perform personal services in the home are “employees.”  The recipient of the services is the employer, who is responsible for collecting and paying income, social security, Medicare, and unemployment taxes.

Let’s make it personal. Suppose the lady falls down the stairs carrying laundry.  She can file for workers’ compensation and have her medical bills and her wage loss paid by the employer – you.  If you “let her go” because daughter can now do it, the lady could file for unemployment.  And then you start hearing about back taxes, interest, and penalties

Fifth Mistake:  Not getting legal advice for “means tested” government benefits
Veterans “Aid and Attendance” and Medicaid nursing home benefits are very valuable to elders. But, they are “means tested.”   They have asset and income limits.  Few people know that these programs allow some common sense solutions to losing all your life savings before you get your earned benefits. Like the income tax you need to know what “deductions, credits and exemptions” the programs allow. When it comes to these government benefits get legal advice.

Conclusion: It is really easy to do it right
For the average person a “life care” plan is no more difficult than preparing for “death and taxes.”  All you have to do is identify your trusted assistants and give them legal authority to do what they will need to do – everything. And then make sure they know when to get professional advice.  Do that and you are 99% there to having aging go as smoothly as it can be.

Jim Schuster, a Certified Elder Law attorney, is an Of Counsel attorney at the law firm of Cummings, McClorey, Davis & Acho, P.L.C. He has been licensed to practice law since 1978 and practices entirely in the area of Elder Law. Mr. Schuster helps elders stay independent and in control and helps children of aging parents with the advice and legal documents they need to carry out their parents’ wishes and take care of their needs. Additionally, he assists clients with the complex Nursing Home Medicaid application process.

Attorneys in the Estate Planning and Elder Law practice group at Cummings, McClorey, Davis & Acho, P.L.C. are available to answer any questions about the five common mistakes outlined above.  We offer compassionate, common sense solutions for seniors worried about the future.  Contact us at (734) 261-2400 or  To learn more about additional issues impacting elder law, follow our blog at

Supreme Court Opinion Released: Fry, IDEA, FAPE and Administrative Remedies

chris-mcintire-photoA school district refuses to allow the service dog of a student with disabilities into the classroom because the student was assigned a one-on-one instructional aide by the school district, rendering the service dog superfluous. The parents remove their child from the school district and ultimately sue the school district and the school’s principal for violations of Title II of the American’s With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The parents did not sue the defendants under the Individuals with Disabilities Education Act (IDEA), nor did they allege in their lawsuit their child was denied a Free Appropriate Public Education (FAPE) under the IDEA. The question remains: Do the parents have to satisfy the administrative requirements of IDEA, even though they are not alleging an IDEA violation?

In this case, the Supreme Court said yes. On February 22, 2017, the Supreme Court published its ruling in Fry et vir, as Next Friends of Minor E.F. v. Napoleon Community Schools et al Fry 580 U.S. __ (2017), in which the court sought to clear up confusion about how the IDEA, ADA, and Section 504 interact. Five justices signed off on the majority opinion, with Justices Alito and Thomas writing a separate concurrence.

The court’s opinion dealt with the confusion that occurs when a violation of a disability right is alleged in the educational setting.  In addition to the IDEA, in 1986 Congress passed the Handicapped Children’s Protection Act, 20 U.S.C. §1415(l), establishing a “carefully defined exhaustion provision” indicating that a person seeking relief under the ADA, Section 504 or similar laws available under the IDEA must first exhaust IDEA’s administrative remedies. The issue in Fry was when does §1415(l) actually come into play. Fry helps clear up when the IDEA administrative remedies must be satisfied.

First, where the gravamen of the lawsuit does not involve a denial of a FAPE under the IDEA, there is no requirement to satisfy the IDEA’s administrative requirements. If the lawsuit alleges the student was denied a FAPE, then IDEA’s administrative requirements apply, even if the lawsuit is brought under the ADA or Section 504 – and does not cite an IDEA violation.

The court noted that there is some overlap between the statutes.  It is important to look at the central issue of the case, and the nature of relief being sought. The court offers a suggested diagnostic test in the form of two hypothetical questions to determine whether the IDEA and FAPE are at play. First, could the plaintiff have brought the same claim against another public facility that was not a school? Second, could an adult at the school have brought essentially the same claim? If the answer is yes to these questions, it is unlikely the complaint involves a claim under the IDEA.

In addition, the court notes that prior actions by the plaintiff should be considered. If the IDEA administrative remedies were pursued earlier in the process, those efforts may be, in the court’s words, “strong evidence that the substance of the plaintiff’s claim concerns a denial of FAPE, even if the complaint never explicitly uses that term.” Fry at Page 3 ¶1(b).

The partial concurrence by Justices Alito and Thomas gives an insight into how plaintiffs may attempt to counter the holding in Fry. Justices Alito and Thomas disagree with the majority’s suggested diagnostic test. The hypothetical questions are based on a claim that there may be some overlap between the IDEA, ADA, and Section 504. Justices Alito and Thomas do not see any overlap, therefore there is no need for the diagnostic test, and, accordingly, plaintiffs may seek to challenge any associated analysis. Secondly, Justices Alito and Thomas note parents may begin the investigation process thinking they should pursue an IDEA cause of action, only to learn they are going down the wrong path towards relief or decide they want a different form of relief, something the IDEA does not provide.

Justices Alito and Thomas’ concern about using pre-litigation efforts to establish whether a case’s core issues involve a FAPE violation under the IDEA is reasonable. There does, however, appear to be interconnections between the IDEA, ADA, and Section 504 from the way the term “disability” is defined to the way the laws interact. For example, Section 504 addresses the concept of FAPE, which the IDEA and the 1986 Handicapped Children’s Protection Act build upon.

No solution is perfect, but the Fry decision does give defense attorneys a stronger hand when faced with education-related lawsuits that try to avoid the administrative requirements outlined under the IDEA.

Christopher A. McIntire is an attorney in our Riverside, CA office where he focuses his practice on public entity defense, employment law, premise liability and mass tort defense. He may be reached at (951) 276-4420 or

A Few Common Reminders of the Family Medical Leave Act (FMLA)

Sue Bartos 2016The Family Medical Leave Act (FMLA) allows an eligible employee to take an unpaid, job-protected leave for a specified family and medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  A few of the common points of FMLA that may be forgotten by the employer are outlined below.

Can the employer have communications with the employee while they are on FMLA?

Yes. Under the FMLA regulations, interference with an employee’s leave includes not only refusing to authorize the leave, but also discouraging an employee from using that leave.  Asking or requiring an employee to work while on leave can cross the line to interference.  There is no bright line test to what is permissible or not.  The Courts have classified simple matters, such as an occasional phone call about a certain issue, an inquiry to close out a completed assignment, or an “unburdensome” request for materials to be permissible.  On the other hand, it will probably be impermissible to require an employee to substantially update a file or complete a task you were hoping they would have finished prior to leave.

To summarize, although the employer can communicate with the employee while he or she is on FMLA, it is recommended that the communication be for simple matters only.  Further, it is not recommended that the employer accept the employee’s offer to work while on leave.  Even if the employee voluntarily wants to work, he or she may later claim it was not voluntarily and an interference charge can be filed.

If the medical certification is completed and returned is FMLA leave automatic? 

No.  A completed and returned medical certification issued by a health care provider does not mean leave is automatic.  The employer needs to approve leave only if the employee has a serious health condition that makes him/her unable to perform one or more of the essential functions of their job. The employee is under the obligation to provide clear and sufficient information to enable the employer to determine if leave is required.

If an employee provides a certification form that is vague, incomplete, or contradictory, the employer has the obligation to request more information prior to leave being granted.  Merely stating “I am sick” or “I am depressed” does not give the employer enough information to make the determination on leave.  Do not be fooled by a doctor’s note that states the employee is “sick” or “needs a few days off to get better.”  The doctor must provide medical facts to support the employee’s need for leave and why the employee is unable to perform the essential functions of their job.

Can the employer request a second opinion?   

Yes.  If the employer is contesting the existence of a serious medical condition, requiring the employee to obtain a second opinion can be required by the employer.  If the two opinions conflict, a third opinion can be obtained.  The third opinion will be final and binding.

Can the employer request recertification?

Yes.  If the leave is for a period of more than 30 days, recertification can be requested.  If the leave is for less than 30 days, recertification can be requested if circumstances described in the original certification have changed or there is reasonable concern of the need for the leave.  In the case of intermittent leave, the medical provider should be provided the pattern of absences to determine if they are consistent with the serious health condition.

Please consult with Sue Bartos and the employment and labor law team at CMDA for any further questions you may have regarding the application of the Family Medical Leave Act.

Suzanne P. Bartos focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.

She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board, and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues.

She may be reached at (734) 261-2400 or