Ding Dong! Your Doorbell Camera Must Come Down
March 10, 2022
The Court of Queen’s Bench of Alberta recently added to the growing case law on the issue of video surveillance in a decision called Lupuliak v Condominium Plan No 8211689, 2022 ABQB 65. Following a break-in of her main floor unit through the patio doors, the unit owner, Lupuliak, installed a security camera on the exterior of the building. She also installed a Ring security camera (a form of motion activated “doorbell” camera) to the front door of her unit, which enters into a common hallway servicing entrances to other units.
The condominium corporation’s bylaws prohibit owners from making additions, modifications or alterations to the exterior of a unit or to the common property without first obtaining written consent from the board of directors. The bylaws also provide that owners shall not unreasonably interfere with the use and enjoyment of the common property by other owners or their visitors.
Nonetheless, Ms. Lupuliak did not seek permission from the board to install either of the cameras, and her neighbours ultimately submitted complaints to the effect that the doorbell camera was an unreasonable intrusion of their privacy. As a result, the board requested that Ms. Lupuliak remove her doorbell camera as it considered the installation to be in contravention of the corporation’s bylaws. Ms. Lupuliak refused, and the matter was put to the owners as a whole at a meeting of the corporation, who unanimously agreed with Lupuliak’s neighbours that the presence of the camera caused them significant discomfort. Ms. Lupuliak continued to resist, and the matter ended up in court.
In his written decision, the honourable Justice Colin Feasby held that the board acted reasonably in requesting that Lupuliak remove the camera. His reasoning was that she had violated the bylaws by installing the camera without obtaining permission from the board. He confirmed that the front door of the unit was, per the condominium plan boundaries, common property and not part of her unit, such that she was not entitled to install the camera without the board’s approval, and that doing so constituted an addition or alteration of the common property. He dismissed Ms. Lupuliak’s claims of oppression by the board and ordered her to remove the camera.
This decision is one of the first of its kind in Alberta, but is in keeping with earlier decisions from British Columbia’s Civil Resolution Tribunal, which have also found that doorbell cameras may be considered alterations or modifications of common property. See for example: Parnell v The Owners, Strata Plan VR 2451, 2018 BCCRT 7 and Herr v The Owners, Strata Plan KAS 1824, 2020 BCCRT 496.
Further, while the Personal Information Protection Act, SA 2003, c P-6.5 (“PIPA”) does not apply to individuals such as Ms. Lupuliak, only to private organizations (including condominium corporations), Justice Feasby concluded that the doorbell camera could and in this case did constitute an unreasonable interference with the use and enjoyment of the common property by other owners and could conceivably be considered a nuisance. As he explained:
“the tort of private nuisance ‘can involve material injury to property or be less tangible and result in discomfort or inconvenience.’ Accordingly, it is clear that the term ‘use and enjoyment’ refers to both the use of property and the experience of using the property … an unreasonable interference is one that “would not be tolerated by the ordinary occupier.”
While stopping short at finding that the tort of private nuisance had been made out on the facts (it was sufficient that the corporation had proven violations of its bylaws), Justice Feasby specifically found that an individual’s discomfort in using the common property under such video surveillance “is a normal feeling that a reasonable person would have in the same circumstances”. In summary, “the surveillance would not be tolerated by the ordinary occupier” and that this is consistent with other decisions on the issue of security cameras.
In his conclusion, Justice Feasby noted the fact that living in a multi-unit condominium “requires tolerance”, and purchasers of condominiums units “necessarily” surrender “some degree of proprietary independence”. That being said, condominium corporations must “be responsive to legitimate concerns of individual unit owners.” Ms. Lupuliak would have been far better off approaching the board after the break-in at her unit to petition for enhanced security in the property, which would have required the board to at least consider her concerns and perhaps install a security system paid for by the corporation. Instead, she ended up in court, and was ordered to pay the corporation’s legal costs on a full indemnity basis.
As a best practice, condo owners who wish to install security cameras should first check their corporation’s bylaws to see if this is permitted, and when in doubt, request permission of the board in advance of installing any such device that captures images of other owners and residents. Condominium corporations, which are governed by PIPA, are already required to create privacy policies and have designated privacy officers. But in addition to crafting a policy regarding their own collection and use of video surveillance images, as this case instructs, condo corporations should also develop policies surrounding video camera installation by owners and residents.
Such a policy could specify that owners must submit written applications containing information about the type of camera such as its means of activation and storage of video images, as well as where it will be installed. In this way the board can determine whether or not it will be a modification of common property, and to what extent, if any, the camera may create an unreasonable interference with the use and enjoyment of common property and/or the units by other owners and occupants of the condo.
In the end, living in a condominium is all about fairness. It involves trying to achieve a balance between the needs of the corporation as a whole with those of the individuals that live in the property. Keeping this idea at the forefront of any conflict may help prevent what is essentially a dispute between neighbours, which in Justice Feasby’s words “often appear to be petty and pointless”, from exploding into an incredibly draining battle royale in court, both emotionally and financially.
If you have any questions regarding this case or others, please contact me.
Are unit owners just going to let porch pirates have their way and steal their packages?
I’ve had 4 packages stolen already, luckily Amazon issued refunds but what if I receive personal packages?
What laws protect the property and safety of a unit owner/ tenant?
What can we do that will not hassle unit owners when receiving packages? The building manager basically told us to leave and transfer to another building when we brought up that we had packages stolen and we did not have any security cameras on the hallways.
This case serves as a warning when unit owners don’t check their bylaws, and don’t report issues to the board before taking action on their own that affects common property. Unit owners need to review their bylaws to see what they are permitted to do on the exterior of their units and/or on the common property. If the bylaws do not allow cameras (for example there is an express prohibition), or if there is otherwise no discretion for the board to consider a request for an exterior or common property modification, owners can lobby for a bylaw amendment. Alternatively, when and if an issue of theft or vandalism occurs, send the Board a written notice detailing the event and request that the Board enhance security over the common areas by installing cameras at the corporation’s cost (if none exist). At the same time, you can make a request to install your own camera(s), and if the board does have the discretion under the bylaws to approve the installation, then it must at least consider the request and should provide written reasons for any refusal. A board’s abdication of discretion or blanket refusal to exercise discretion to consider a request could be considered oppressive to the owner that made the request. Condo corporations also need to clearly define policies for these types of requests (security cameras) as they are likely to become more frequent in the future.
I see this instance involved a condo unit with hallways. We have a row house type situation where the doorbell camera faces out to our property and then the public street beyond. Where is anyone’s privacy being compromised in this case
As with all legal decisions, they can turn depending on the facts specific to each case. In another style of property, such as bare land duplexes or even townhouse-style condominium units, the findings of the court may have been different.
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Hello, our Privacy Officer created a Video Surveillance policy indicating residents must have written permission to place video surveillance that records. No further restrictions are laid out in the policy.
While I can see a case for someone on the first floor (townhall style) facing out onto the street dealing with porch pirates, I can’t see a case for anyone in the rest of the apartment style building, given other security measures, including corporation video surveillance camera in some common areas.
We have already seen a case where an Owner installed a doorbell camera on their unit door facing into the common area hallway, used that to videotape someone entering a storage locker opposite their unit, then posted that video on a Facebook page asking other residents to help in identifying the individual.
How can a board create a policy that causes issues such as interfering with the use & enjoyment of the common areas?
Thank you.
The Board is entitled to make rules and policies “respecting procedures used in the administration of the corporation or the real and personal property of the corporation, the common property and managed property.” This includes rules clarifying how the bylaws will be applied, particularly in respect of areas where there is board discretion. In most cases, condo bylaws contain provisions stating that owners may not modify the exterior of their unit or the common property without prior board approval, and that an owner shall not do or permit anything to be done that would unreasonably interfere with another owner or occupant’s use and enjoyment of their unit or the common property. A rule or policy could, if these bylaws are in place, be passed by the board with respect to mounting surveillance cameras on the exterior of a unit or on the common property in such a way that is not reasonably expected to interfere with the use and enjoyment of the common property by other occupants. The condominium bylaws would need to be examined to determine the scope of the board’s authority and discretion in this particular case.
I would love to know the reasoning behind theft being “the use and enjoyment of the common areas”.
The court’s reasoning was as follows:
[84] “[the owner’s] discomfort using the common hallway knowing that [the owner] and her guests will be captured on video entering and leaving her condominium unit is a normal feeling that a reasonable person would have in the same circumstances. In short, the surveillance would not be tolerated by the ordinary occupier. This is consistent with findings in other cases that security cameras that capture activity on another person’s property may constitute a tortious nuisance […] Regardless of whether the tort of nuisance is made out on the present facts, Ms. Lupuliak’s actions impaired the use and enjoyment of common property by residents of Riverhill Gardens and contravened the By-Laws.
[85] Ms. Lupuliak’s conduct in using the video footage captured by the doorbell to bolster her complaints about the Respondents to the Calgary Police Service, Alberta Health Services, and the Alberta Privacy Commissioner, along with her posting video footage from the doorbell on social media, was improper. The weaponizing of the doorbell in this fashion validates all of the concerns expressed by the Respondents and is not conducive to peaceful co-existence in the context of a condominium complex such as Riverhill Gardens.
We had a camera outside a unit’s home 5 years ago, which council directed to be removed which it was. Our (rowhome) neighbor who we share a driveway with installed a doorbell camera without requesting approval(he so happens to be the council president). After researching the camera type it clearly has full view of our driveway and front lawn. On top of that he would always creepily come out every time my wife was out doing recycling. We have 2 daughters. Upon complaining to strata he was asked to remove it, which he did weeks later. He has now applied to strata again to put the doorbell camera up. Which because he cannot vote it looks like will be denied. However because he has a friend who also is on council they are now pushing to put a bylaw in front of the owners to allow cameras (weak council only 4 members) – There has been no incidents of porch pirates, break-ins, vandalism, or car thefts. My question is, what privacy laws are in place to protect us? How many times does he need to be told no and what weight does precedence in this matter?
Depending on the type of condominium and where he has placed the camera, it may be common property over which the board has discretion to approve/disapprove the installation of security cameras. Condominium corporations are responsible for the control, management and administration of the common property and the board of directors is vested with all the powers and duties of the corporation, in accordance with Alberta’s Condominium Property Act. While a condominium corporation is subject to provincial privacy legislation such as PIPA (Alberta’s Personal Information Protection Act), and is required to comply with that legislation in its own collection, use and disclosure of personal information about individuals (including video surveillance images), individual unit owners are not, as they are not considered “organizations” to which PIPA applies.
Hypothetically, using the example of an owner that wants to install a camera on common property, the corporation would not necessarily be in control of the collection, use or disclosure of the information recorded by the camera, but it is still in control of the common property. Depending on the bylaws, the corporation may be liable to an owner who complains about being surveilled for failing to enforce bylaws on nuisance, for example. If the board exercises its discretion to approve an owner’s installation and use of cameras on common property and such use causes harm to another owner or infringes on their use and enjoyment of the property, this could also be considered conduct by the corporation that is oppressive, unfairly prejudicial to or that unfairly disregards the interests of the owner who is being surveilled. The owner who installed the camera may also be liable to another owner in those circumstances for conduct that is considered oppressive or unfairly prejudicial. Where, however, bylaws allow owners to install cameras and do not leave room for board discretion, the situation may be very different, limiting the remedies available. In either case, I recommend seeking legal advice with respect to your specific circumstances.
Is it legal for myself as a condo owner to put up a camera in my titled parking stall that I own in the parking garage? There are no specific bylaws in our building regarding this. TIA for any information.
Most bylaws don’t contain express provisions addressing security cameras. The bylaws would need to be reviewed as a whole to determine if this is permitted in your particular condo.
Our condo units are townhouses in groupings of 4, with backyard garages in the same groupings as the residences. Are there policy suggestions for owner installed doorbell cameras at front door locations, as well as policies for backyard camera installations to monitor the backyard and garage portions of each condo?
As each condo property is unique, a policy prepared for one property may not easily fit with another property. It depends to a large extend on how boundaries between units and common property are defined, and what the bylaws provide for making modifications to the exterior of units and common property. An overriding consideration in developing a policy that would allow unit owners to install their own security/doorbell cameras is privacy – the impact cameras might have on other occupants and their use and enjoyment of the common property and the other units. The board may wish to engage a lawyer for guidance in drafting a policy or rule addressing security cameras.