Are Homeowner’s Association Violation Pictures a Privacy Right Concern?
By Jessica A. Cappock March 24, 2022 Posted in Community Association Law Share
If you are a part of a homeowner’s association, whether as a general member, or part of the board, you’ve most likely come into contact with photos of community violations. After all, it’s only human nature to snap a quick picture of a community violation to document the occurrence. Most members of a community governed by a homeowner’s association think nothing of taking a quick picture, and board members often welcome receipt of the same to aid in maintaining compliance throughout the neighborhood. Despite the commonality of a violation picture, violating members often raise privacy right concerns as a defense, purporting invasion of privacy in an effort to preclude covenant enforcement.
Invasion of Privacy
Taking a picture of a homeowner association violation may fall under either (1) intrusion upon seclusion; or (2) public disclosure of private facts branches of the tort of invasion of Privacy. Restatement (Second) of Torts § 652 (1977). An invasion of privacy in this context is largely dependent on the specific circumstances of (1) how and from where the picture was taken; (2) what the picture is of; and (3) the intended purpose and future use of the picture.
Reasonable Expectation of Privacy
A reasonable expectation of privacy is required for any claim of invasion of another’s privacy rights. According to the United States Supreme Court, an individual has a reasonable expectation of privacy when he or she subjectively expects something to remain private and has not knowingly exposed it to the public. Katz v. United States, 389 U.S. 347 (1967). “What a person knowingly exposes to the public…is not a subject of Fourth Amendment protection.” California v. Ciraolo, 476 U.S. 207, 211 (1986). Under the general rule, a homeowner does not maintain a reasonable expectation of privacy in “what is plainly viewed from the vantage point of a temporary visitor who walks along the pathway or stands at the doorway,” including what may be seen through windows on the door or the front of the house. Powell v. State, 120 So. 3d 577, 584 (Fla. 1st DCA 2013). Indeed, courts examining the question in greater detail have held that an expectation of privacy is largely dependent on the time, place, and relationship between the parties. See, Wolfson v. Lewis, 924 F. Supp. 1413, 1417–18 (E.D. Pa. 1996). A plaintiff whose seclusion is interrupted while in his or her own home almost always has a reasonable expectation of privacy, but that expectation is reduced outdoors and especially when in a public place. Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (emphasis added).
Specific to privacy rights within a community association, Florida Courts have held that when you purchase a home subject to a community association, you “give up a certain degree of freedom of choice which [you] might otherwise enjoy in separate, privately owned property.” Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. Dist. Ct. App. 1975).
In general, a property owner has a reasonable expectation of privacy from the photographing of those areas within the confines of his/her home, not readily observable from public property. While it has not been addressed directly by the courts, it can be inferred that a property owner’s reasonable expectation of privacy may be diminished by the governing documents and regulations of a community association depending upon the nature and area of governance. It may be reasonable for a property owner to expect some form of diminished privacy particular to those areas subject to community association covenants and regulations, for instance, photographs of any violation within public view.
Intrusion Upon Seclusion
Section 652B, Restatement (Second) of Torts, defines intrusion upon seclusion as an invasion of privacy in which “[o]ne…intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns…” and renders liability for an invasion of privacy, “if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B (1977). Intrusion involves “physically or electronically intruding into one’s private quarters.” Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d 1239, 1252 (Fla. 1996). The intrusion must be upon a place where there is a reasonable expectation of privacy. The tort of intrusion upon seclusion is focused on “the right of a private person to be free from public gaze.” Agency for Health Care Admin., 678 So. 2d 1239 (emphasis added). Photographing a person in a public setting does not rise to the level of tortious conduct. Spilfogel v. Fox. Broad. Co., 433 F. App’x 724, 726 (11th Cir. 2011).
Intrusion upon seclusion, while traditionally focused on an individual being protected from the public’s view within the confines of areas in which they have a reasonable expectation of privacy, may apply to the private property itself. Specific to a person’s right to photograph the private property of another, particularly in the context of identifying community association violations, the crux of the analysis lies on the nature of contents of the picture at issue and whether the same is information of a private nature. For example, suppose a backyard landscape violation is visible from a neighboring backyard because of a slight elevation difference, or the type of fence, or from the second story of a neighboring residence. The property owner may not have a reasonable expectation of privacy as to the portions of their backyard visible and thus will not be protected from pictures being taken of those areas. The nature of the activity, persons involved, and content of the picture are likely crucial to the determination of whether an invasion of privacy has occurred. Generally, the courts have found an invasion of privacy pertaining to the photographing of persons not merely property. However, it is the private nature of the photograph and not whether a person is included within the picture, that is the test for an invasion of privacy cause of action. Therefore, should the photograph contain an image of private property, in which an individual maintains a reasonable expectation of privacy, and includes content that would be highly offensive to a reasonable person should it be brought into public view, it may be sufficient as a basis for an invasion of privacy intrusion upon seclusion claim.
Public Disclosure of Private Facts
Publication of private facts involves “the dissemination of truthful private information which a reasonable person would find objectionable.” Agency for Health Care Admin., 678 So. 2d at 1252. To meet the requirement of “public disclosure,” the publication or disclosure must be made to a significant number of persons, not merely a few individuals. See Williams v. City of Minneola, 5757 So. 2d 683, 689 (Fla. 5th DCA 1991). The publicity “must be more than mere publication. The fact must be made public by communicating it to the public at large or to so many people that the matter must be regarded as substantially certain to become one of public knowledge.” Leach v. Dist. Bd. of Trs. of Palm Beach, 244 F. Supp. 3d 1339 (S.D. Fla. 2017) citing Restatement (Second) of Torts §652D cmt. a (1977).
To qualify under an invasion of privacy as a “public disclosure of private facts” the facts must not already be exposed to the public eye. See Heath v. Playboy Enterprises, Inc., 732 F. Supp. 1145 (S.D. Fla. 1990). A plaintiff must make effort to actually conceal the alleged private facts. Doe v. Univision Television Group, Inc., 717 So. 2d 63 (Fla. 3d DCA 1998). The disclosure and/or publication must be measured by whether a reasonable person of ordinary sensibilities would be offended, not based upon potential hypersensitivities of the individual. Cape Publications, Inc. v. Bridges, 423 So. 2d 426 (Fla. 5th DCA 1982).
While it is more likely that a property owner would bring a cause of action based on intrusion upon seclusion, it is possible, depending upon the nature of the claim, that a cause of action for public disclosure of private facts may be brought by a plaintiff depending upon the nature of report to the community association. To qualify, a photograph must contain private information which the property owner has made efforts to shield from the public eye. Therefore, much like an intrusion upon seclusion claim, a photograph of private property, particularly a violation of community association covenants and restrictions, may only be considered private if it is not viewable by the naked eye from other property. It is important to note that even if a picture of a community association violation does meet the foregoing requirement, the disclosure and/or publication must be so substantial as to render the matter one of public knowledge. While the analysis is on a case-by-case basis, the baseline for the private nature of the content is based upon whether a reasonable person of ordinary sensibilities would be offended, regardless of any hypersensitivities of the individual at issue.
When a person purchases property within an HOA, he/she is deemed to have full knowledge of the covenants and restrictions the owner and his/her property are bound by. Reporting a violation of the covenants through photography or video would likely not rise to the level of an intrusion upon seclusion or a public disclosure of private facts so long as the owner is not in the pictures and the picture is not of the interior of the home or a section of the person’s yard that cannot be seen from any other neighboring property.
Whether an individual has a claim for an invasion of privacy pursuant to pictures of their private property for the purposes of reporting community association violations is dependent on the picture’s content, use, and from where it was taken. While it is possible that an invasion of privacy claim may be brought under unique circumstances, it is unlikely to be successful considering the unlikelihood that the picture contains an image to which the property owner maintains a reasonable expectation of privacy within the community association context. In lieu of an action for invasion of privacy, a property owner may bring an action for trespass depending on the manner and location at the time of photographing the private property. A trespass claim would be more applicable if a neighbor actually stepped onto the owner’s property to take a picture of the violation. If so, the claim would be a traditional trespass claim based upon an individual’s continued presence upon another person’s property in addition to conducting activity not consented to by the property owner.