{"id":77672,"date":"2016-04-06T15:30:36","date_gmt":"2016-04-06T21:30:36","guid":{"rendered":"https:\/\/www.biggerpockets.com\/renewsblog\/?p=77672"},"modified":"2021-03-16T11:55:45","modified_gmt":"2021-03-16T17:55:45","slug":"2016-04-06-avoid-catastophe-tenant-recorded-conversations","status":"publish","type":"post","link":"https:\/\/www.biggerpockets.com\/blog\/2016-04-06-avoid-catastophe-tenant-recorded-conversations","title":{"rendered":"How to Avoid a Legal Catastrophe Caused by Tenant-Recorded Conversations"},"content":{"rendered":"

[Editor’s note: This article is meant for informational purposes only. Please consult an\u00a0attorney regarding your specific situation before making any legal decisions.]<\/em><\/p>\n

In a groundbreaking article<\/a> published last October by The New York Times<\/em>, tenants described in\u00a0explicit detail their strategies against ineffective, unresponsive, and downright tenuous city\u00a0landlords. Most notably, these Manhattan-area residents reported making secret recordings in\u00a0order to memorialize the landlords\u2019 latest attempts to enter the residence — attempts that often\u00a0involved the landlord citing allegations of criminal activity afoot or questionable issues with\u00a0major appliances.<\/p>\n

The story ultimately focused on unlawful efforts by unscrupulous property managers to oust\u00a0residents enjoying the benefits of rent stabilization — a source of contention between landlords\u00a0and tenants throughout all five New York City boroughs.<\/p>\n

However, the Times<\/em> story also highlighted an important underlying issue that the savvy landlord\u00a0should be aware of: secret recordings. Can a tenant secretly record conversations with a landlord\u00a0or building manager? And, if so, is the content of these recordings usable in any way against the\u00a0landlord in a subsequent conflict — particularly in landlord\/tenant or small claims court?<\/p>\n

Here\u2019s a general overview of secret recording laws, as well as steps for the unwary landlord\u00a0honestly looking to resolve a tenant dispute lawfully, efficiently, and respectfully.<\/p>\n

\"multiunit-vs-sfr\"<\/p>\n

The Where and When<\/h2>\n

Landlords should always be aware that a tenant may opt to record the details of a conversation,\u00a0particularly if the issue involves allegations of damage to the unit or a possible breach of the\u00a0lease agreement. The legality of this maneuver depends on (1) where the recording took place\u00a0and (2) what the tenant attempts to do with the recorded content.<\/p>\n

Related:<\/strong> How to Safely Navigate Landlord-Tenant Laws as a Real Estate Investor<\/a><\/em><\/p>\n

Generally speaking, recording audio or video in a public space<\/a> is almost always allowed, as the\u00a0law has decided that folks should not expect privacy in a public or common area. Accordingly,\u00a0conversations taking place on the sidewalk, a common area, or parking lot are for the most\u00a0part allowable and not subject to suppression under privacy laws. Along these same lines, a\u00a0conversation occurring in the tenant\u2019s unit may be recorded by the tenant without the necessity\u00a0of consent by any other participant in the verbal exchange.<\/p>\n

By contrast, a landlord has a reasonable expectation of privacy in areas not designated as open to\u00a0the public or the tenant population, such as the back office, the landlord\u2019s unit, or other private\u00a0spaces specifically reserved for management.<\/p>\n

The What and How<\/h2>\n

Assuming the tenant has lawfully recorded the conversation with the landlord, the next question\u00a0is precisely how<\/em> this information can be used — and for what. Characteristically, a tenant will\u00a0have opted to record a conversation in preparation for some sort of litigation or claim — in other\u00a0words, to prove something.<\/p>\n

If a tenant tries to use the recording in a subsequent landlord\/tenant issue in a court of law, he or\u00a0she will be under the auspices of the state\u2019s rules of evidence, which are typically modeled\u00a0closely after the Federal Rules of Evidence<\/a>. In order to maintain the reliability of evidence in the\u00a0courtroom, introducing recorded evidence can be somewhat difficult to achieve, most notably\u00a0due to the following issues:<\/p>\n