Meetings of a homeowners’ association (“HOA”) are inherently of significant interest to many members of the community. As with any event in the age of readily accessible recording devices, it is foreseeable that some members of your HOA may want to record the HOA meetings for either their own purposes or for distribution to others who could not attend. While the reasons a member may want to record a meeting are understandable, other members may be uncomfortable with the idea. We find that HOAs are often unsure about the right of their board of directors (“board”) to prohibit members from recording HOA meetings. This article sets forth a very general summary of the law applicable to such a prohibition, as well as some factors that an HOA board might consider in determining to prohibit, or allow, the recording of meetings.
There are fair and valid reasons that a board may want to prohibit the recording of meetings.
First, without possession and control of the recording, it is conceivable that the recording could be shared and expose sensitive information intended for the members of your specific community to someone outside of the HOA. While recordings can present the benefit of ensuring the accuracy of minutes or clarification regarding past actions, recordings can also be selectively edited which could lead to controversy and challenge to actions taken by the HOA as a result of a misrepresentation of what the recording actually captured. Moreover, as mentioned above, many people feel uncomfortable being recorded in any setting. Therefore, recording meetings can have an unwanted “chilling effect” on members’ willingness to participate in the discussions due to their discomfort with being recorded. Of course, this is not intended to be an exhaustive list of factors to weigh in prohibiting or allowing recording.
As to the legality of prohibiting the recording of HOA meetings, there is not currently a published court opinion from South Carolina directly addressing the issue.
However, based on principles of common law, parliamentary procedure, and statutory authority in South Carolina, we can reasonably conclude that HOA boards generally do have that authority to prohibit recording of the HOA meetings. It is well known that South Carolina is a “one party consent” state, effectively meaning that only one party in the conversation must consent to recording of a communication.[1] However, this does not mean that restrictions cannot be placed on meetings by applicable governing entities and does not preclude an HOA board from prohibiting recording at HOA meetings. An HOA board evaluating this issue should consult with their governing documents to see if recording of meetings is already expressly prohibited or allowed by the documents. If the documents do not expressly prohibit or allow recording, the board nevertheless generally has the authority to manage the conduct of the HOA meeting whether it be pursuant to provisions in the governing documents to that effect, or the South Carolina statutory authority designating the board as the group responsible for overall management of affairs of an association.[2] Therefore, unless the governing documents provide otherwise, an HOA board would foreseeably be found by a reviewing court to have the authority to restrict recording of the meetings.
All that being said, if an HOA board wants to prohibit the recording of meetings, and the governing documents do not already expressly prohibit the recording of meetings, it would be prudent for the board to consider adopting and recording a resolution or rule expressly prohibiting recording so that all members are on notice of this policy. This provides the obvious benefit of informing members of the policy ahead of time to hopefully facilitate better cooperation, but it also importantly provides the HOA with stronger standing to enforce the policy if it actually exists as a published rule.
Of course, this is in no way intended to be an exhaustive discussion of the legal implications of allowing or prohibiting recordings of HOA meetings, nor any guarantee regarding the outcome of litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding HOA meeting regulations and procedure. Please contact us at (803) – 724 – 5000 for further information. McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
By Jim Lady
[1] S.C. Code § 17-30-30(C).
[2] S.C. Code § 33-31-140(3).