How to Avoid a Legal Catastrophe Caused by Tenant-Recorded Conversations

[Editor’s note: This article is meant for informational purposes only. Please consult an attorney regarding your specific situation before making any legal decisions.]

In a groundbreaking article published last October by The New York Times, tenants described in explicit detail their strategies against ineffective, unresponsive, and downright tenuous city landlords. Most notably, these Manhattan-area residents reported making secret recordings in order to memorialize the landlords’ latest attempts to enter the residence — attempts that often involved the landlord citing allegations of criminal activity afoot or questionable issues with major appliances.

The story ultimately focused on unlawful efforts by unscrupulous property managers to oust residents enjoying the benefits of rent stabilization — a source of contention between landlords and tenants throughout all five New York City boroughs.

However, the Times story also highlighted an important underlying issue that the savvy landlord should be aware of: secret recordings. Can a tenant secretly record conversations with a landlord or building manager? And, if so, is the content of these recordings usable in any way against the landlord in a subsequent conflict — particularly in landlord/tenant or small claims court?

Here’s a general overview of secret recording laws, as well as steps for the unwary landlord honestly looking to resolve a tenant dispute lawfully, efficiently, and respectfully.

The Where and When

Landlords should always be aware that a tenant may opt to record the details of a conversation, particularly if the issue involves allegations of damage to the unit or a possible breach of the lease agreement. The legality of this maneuver depends on (1) where the recording took place and (2) what the tenant attempts to do with the recorded content.

Generally speaking, recording audio or video in a public space is almost always allowed, as the law has decided that folks should not expect privacy in a public or common area. Accordingly, conversations taking place on the sidewalk, a common area, or parking lot are for the most part allowable and not subject to suppression under privacy laws. Along these same lines, a conversation occurring in the tenant’s unit may be recorded by the tenant without the necessity of consent by any other participant in the verbal exchange.

By contrast, a landlord has a reasonable expectation of privacy in areas not designated as open to the public or the tenant population, such as the back office, the landlord’s unit, or other private spaces specifically reserved for management.

The What and How

Assuming the tenant has lawfully recorded the conversation with the landlord, the next question is precisely how this information can be used — and for what. Characteristically, a tenant will have opted to record a conversation in preparation for some sort of litigation or claim — in other words, to prove something.

If a tenant tries to use the recording in a subsequent landlord/tenant issue in a court of law, he or she will be under the auspices of the state’s rules of evidence, which are typically modeled closely after the Federal Rules of Evidence. In order to maintain the reliability of evidence in the courtroom, introducing recorded evidence can be somewhat difficult to achieve, most notably due to the following issues:

A pure audio recording (with no video) could be of anyone, and it may be difficult to prove it is the landlord speaking.
Likewise, it may be difficult to prove the landlord was speaking to the tenant/plaintiff.
Recordings can be difficult to understand, grainy, or unreliably distorted.
A recording may have been doctored, edited, or truncated, with highly relevant exculpatory components erased.

Keeping this in mind, any recorded conversations must be properly “authenticated” before a judge or jury may consider the contents of the conversation in making a decision. If a tenant were to seek to introduce the contents of a recorded conversation, he or she should would need a corroborating witness to testify that the voices heard on the recording are, in fact, those of the tenant and landlord, and that the recording represents an accurate description of the conversation.

Once introduced, the recording becomes just one part of the entire case — and the court may give it as much (or as little) weight as it warrants, depending on the nature of the content and the overall relevance of the recording as a whole.

Best Practices

As a savvy landlord and property investor, you can protect against exposure to liability caused by the contents of a secret recording. For starters, you can create a residential lease agreement that prohibits secret (or overt) recordings of third parties within the tenant’s residential unit. Including this prohibition in the agreement essentially prohibits the tenant from relying on surreptitious recordings in the event of conflict or litigation.

In addition, should you become embroiled in landlord/tenant litigation, your best defense against the introduction of alleged recorded conversations is the “lack of authenticity” argument, as discussed above. In other words, you can prevent the introduction of an unanticipated recording by attacking its integrity –namely the notion that the recording is in fact a true and accurate representation of the entire conversation.

Lastly, you can unequivocally avoid the negative exposure of a secret recording by ensuring that all confrontational landlord/tenant conversations take place in your personal office, where a reasonable expectation of privacy reigns preeminent and will work to prevent the introduction of recorded evidence on constitutional — which is to say, irrefutable — grounds.

And, of course, your behavior is a factor as well; conscientious and responsive landlords who engage in honest, respectful relationships with tenants are far less likely to find themselves being surreptitiously recorded in the first place.

Landlords: Have you ever found yourself in a position where a tenant recorded your conversation for legal purposes? How did you handle it?

Let me know your thoughts with a comment.

Note By BiggerPockets: These are opinions written by the author and do not necessarily represent the opinions of BiggerPockets.