By Robert Nislick
You are a condominium trustee or unit owner in Massachusetts. Similarly, you may be a landlord or a tenant. A meeting is scheduled and you would like to record it. It is possible that a condominium trustee might want a recording so that he can prepare a set of meeting minutes. Let’s assume that there is frequent disagreement and distrust between or among the trustees and the unit owners, or between a landlord and tenant. You might like to replay what someone said previously, so you can hold him to it. Or maybe you would like to use the recording against someone some day.
Can you audio record the meeting? Unless you have the consent of all persons present, you cannot make an audio recording of the meeting. Doing so could expose you to civil and criminal liability.
The Massachusetts Wiretap Act, G.L. c. 272, § 99, prohibits the recording of oral communications without the consent of all parties. Commonwealth v. Blood, 400 Mass. 61, 66 (1987). “The Massachusetts wiretap statute prohibits the secret use of intercepting devices by private individuals.” O’Sullivan v. Nynex Corp., 426 Mass. 261, 263 (1997).
General Laws c. 272, § 99(Q), provides a civil remedy for violations of the wiretap act. Under the statute, “aggrieved person whose oral or wire communications were intercepted, disclosed or used . . . or whose personal or property interests or privacy were violated by means of an interception . . . shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person . . . 1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher; 2. punitive damages; and 3. a reasonable attorney’s fee and other litigation disbursements reasonably incurred.” G. L. c. 272, § 99(Q).
The term “interception” includes to “secretly record”. See G. L. c. 272, § 99(B)(4).
In Pine v. Rust, 404 Mass. 411 (1989), a number of tenants formed a union and scheduled a series of meetings in which they invited other tenants. Neither the landlord nor the property manager were invited to attend. The tenants union invited attorneys to advise the tenants of their legal rights. One person, who was not a tenant, gave a false name and address indicating that she was a tenant. She attended the meeting at the direction of the landlord’s trustee. She carried a small tape recorder concealed in her purse and clandestinely recorded parts of the meeting. Her presence at, and recording of, the meeting was to aid the landlord and property manager in ascertaining the tenant union’s strategy so as to gain a tactical advantage in any litigation. Information was illegally obtained by the secret recording which was used to harass the tenants through threatening telephone calls and eviction actions. One of the plaintiffs died during the case, and his estate could not recover. However, as to the plaintiff who lived, the S.J.C. affirmed an award of attorney’s fees in his favor.
Unless you are sure that everyone present consents to the recording, and you are not making a secret recording, it is simply not a good idea to make an audio recording of a condominium meeting.
On a slightly different note, the wiretap statute is silent as to video recordings. In certain instances, it might be advisable for someone to set up a surveillance camera on their property. When I advise people concerning the placement of security cameras on their property, I make a point to tell them that it should be video only, and no audio, so that there can be no claim under the wiretap statute.
About the author: Robert Nislick is a Massachusetts condominium and landlord-tenant lawyer and former law clerk at the Land Court. For more information, contact him at (508) 405-1238, or by e-mail.