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Adopt Policies to Avoid Public Relations Nightmares

Web Admin - Wednesday, April 13, 2016
IF YOU ARE NOT AWARE, SOMEBODY IS WATCHING YOU! ADOPT POLICIES TO AVOID PUBLIC RELATIONS NIGHTMARE by Mark Tschetter, Senior Managing Partner of Tschetter Hamrick Sulzer, P.C.

Some claim that the average urban American is photographed or videotaped 75 times a day. Inexpensive digital photography and video equipment have crept into all aspects of our daily lives and are here to stay. Inexpensive digital video now streams to the cloud for storage and access 24/7 on any computer or mobile device. Accordingly, the probability of a community employee being subject to live video monitoring when they enter a tenant’s apartment is substantial, and becomes greater every day.

A number of video “situations” have hit the THS situation board. Specifically, tenants have complained to onsite management, including threatening legal action in some instances, because onsite team members have engaged in inappropriate behavior while inside of a tenant’s unit during maintenance or inspection. Most of these issues have not dealt with blatantly criminal behavior like theft or damage to the tenant’s property. The most common complaint from tenants, with hidden video cameras, is that an employee is exercising a more than appropriate interest in the tenant’s personal property. Tenants produce videos of staff members going through their clothing, drawers, refrigerators, music and video collections, and otherwise just plain snooping. These videos can create the impression that the staff member is “casing” the unit for later criminal activity or stalking the tenant.

Under Colorado law, a landlord’s right to enter a tenant’s apartment is entirely dependent on the terms of the lease agreement. Historically there was a legal presumption that all rights of possession of a property were transferred to the tenant when a landlord leased that property to the tenant. Consequently, without a contrary agreement in the lease, a Colorado landlord has no right to enter a tenant’s apartment unit.
Most leases allow a landlord to enter for most reasonable business purposes, including maintenance and inspection. However, we’ve never seen a lease that authorizes a landlord to go through a tenant’s possessions. However, no matter how broad your right to enter a tenant’s rental unit, it doesn’t cover the overzealous observation of the tenant’s personal property by an onsite team member. Such conduct is a clear breach of any lease agreement.

Some states have modified a landlord’s right to re-enter a tenant’s rental unit by severely restricting the landlord’s right and ability to enter or re-enter a rental unit. These states have imposed a burdensome regulatory framework that describes when a landlord may or may not enter a leased property. In addition to impacting management’s ability to efficiently perform maintenance, these laws also impose liability on landlords for wrongful entry, or entry made without proper notice.

We are exposed to the landlord and tenant laws of other states daily. Landlords have it good in Colorado. Colorado has some of the most reasonable landlord tenant laws in the country. Colorado does not take on the difficult (impossible) job of describing in detail the appropriate circumstances and notice for every possible landlord re-entry into a rental unit. Rather, in Colorado, a landlord’s right to enter a rented apartment, is created and limited by the parties in the lease agreement. Bad legislation can easily be born from a few highly publicized cases or tragedies. One bad video playing on the news and then over and over on the Internet could result in legislation that could dramatically increase the cost of maintaining apartment units.

In addition to altering the industry negatively for everyone, the list of potentially bad consequences to your individual community is long. It doesn’t take much of a leap of imagination for a tenant to claim that a video of an unprofessional inspection serves as evidence of an employee’s involvement with a later theft (real or falsified). Tenants could also use videos to break their lease. If onsite team members do inappropriate things in a tenant’s unit, the tenant will argue that this is a clear breach of the covenant of quiet enjoyment. Because everyone thinks that somebody rifling through their belongs is an unacceptable violation of someone’s privacy, many judges may agree, and conclude that a tenant is justified in breaking their lease when onsite team members are caught on video doing inappropriate and unacceptable things inside the tenant’s unit.

Potential fair housing liability is also significant. A protected class member could easily argue that the community is providing different maintenance “terms, conditions, and privileges” when onsite team members are captured on video violating the tenant’s privacy. This type of video would be particularly damming if other tenants had hidden video cameras, but none of them complained. It then looks like the team member is only violating the privacy of the tenant because of their protected class status.

Tenant videos could also make it more difficult to defend fair housing complaints. Tenants frequently lie in connection with fair housing complaints to bolster their complaint by attempting to make onsite team members appear racist. For example, tenants will allege that a maintenance tech hurled a racial slur or epithet at the tenant. We usually can defend against these types of “he said, she said” fabrications. However, such a lie will be given more credibility, and thus will be much more difficult to defend against, if the tenant has the maintenance tech, who allegedly made the racial slur, on video disrespecting the tenant’s privacy by going through the tenant’s personal effects on multiple occasions.

You should promptly alert your staff members about the possibility of being filmed while they are inside a tenant’s home. Onsite team members should always assume that they are always on camera. When inside a tenant’s unit, onsite team members should always behave as if the tenant was home. Staff should be all business while inside a tenant’s unit. Inspection activity should be clearly focused on the apartment itself rather than the resident’s personal property and should be as un-intrusive as possible for the legitimate purpose being served by the entry.

Owners and managers need to adopt these types of SOP (Standard Operating Procedures) policies, including harsh consequences for violations, including termination of employment. Because videos can be instantly uploaded to YouTube or posted on other social media sites, the community can’t tolerate any inappropriate behavior inside a tenant’s unit. The consequences for violation have to be harsh because a single video could quickly turn into a tenant relation’s nightmare. Even worse, the video could be picked up by the news and posted on their website forever. Zero tolerance policies may be necessary or warranted to avoid negative publicity and financial impact on a community that could be caused by a single video.
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