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

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[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.

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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.

Related: How to Safely Navigate Landlord-Tenant Laws as a Real Estate Investor

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.

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Related: 7 Tips to Keep Landlords Free From Costly Tenant Lawsuits

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.

About Author

Stephanie Reid

Stephanie Reid obtained her J.D. from Regent University School of Law and her Bachelor of Arts degree from Florida State University. After two years in private practice, Stephanie has opened her own law firm, Stephanie Reid Law. Stephanie also writes for AvvoStories, brought to you by Avvo,an online legal marketplace connecting consumers and lawyers.

6 Comments

    • I think the spirit of the post is what to do regarding recordings AS you do what’s right. Unless you are a lawyer, it may be difficult to see how your choice of language affects your situation legally.

      Being right and doing right are no protection against lawsuits. That’s similar to saying that your home should be subject to search at any time because you are doing nothing wrong.

      Just because you’re innocent doesn’t mean that you won’t be found guilty.

      • Stephen S.

        Can you give me an example of something I might say, which is entirely within the guidelines I posted previously, have it recorded by a tenant and then have the recorded conversation used to my detriment by the tenant?

        Stephen
        —————-

  1. Alex Chin

    I tend to agree with Stephen above and the general spirit of BP.

    Screen tenants well, conduct business with integrity and respect to yourself, your business, and your clients. This should minimize your litigation risk and in the event you are sued, I’d like to think that you’ll have nothing to fear.

  2. Maggie Tasseron

    Forget the phone altogether and handle issues by email only, especially once you suspect you are potentially going to have a problem with a tenant. Emails usually won’t be doctored and they make great evidence in a courtroom.

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