Property Management Q & A | Winter 2020 Edition

prop management - smoking - web

QUESTION: "One of our agents was at an apartment complex and took an exterior photo of a unit that had its blinds open to document the cigarette butts she saw through the window. We used the photo to enforce the “no smoking” provision in the tenant’s lease agreement. The tenant reported this to the police department as a violation of his privacy and harassment. We were subsequently contacted by a police officer who threatened to arrest the agent who took the photo, claiming it constituted criminal harassment of the tenant, with us as the property managers complicit because we used the photo. We don’t want to break the law, so in the future, we will issue notices prior to any exterior inspections of a tenant’s unit but this has really caught us off guard. The tenant’s blinds were open and his unit opens to a common walkway that can be accessed by anyone. Can you fill us in on whether we actually violated the law?"  



I am not an expert in criminal law, but I believe I know what it is that allegedly violated the law.

At first blush, one could easily agree with you that your agent did nothing wrong. You state that the blinds were open and the interior of the unit was visible. However, while I don’t know all the facts here, my guess is that if your agent was just walking by the unit, it would not be possible to see the cigarette butts on the table in the unit without coming very close to the window, and perhaps getting into a specific position right up to the glass to see inside.

When something is in plain view and no special effort is made to look inside, I believe that you can document what is plainly visible. An example would be an apartment that has a “no pets” but you can plainly see from the outside a cat walking on the windowsill. When that is plainly visible, and no special effort is made to look in that direction, I believe that you can document (photo or record) what you see.

As a matter of law, it deals with the reasonable expectation of privacy. One often used example is that if someone was sunbathing in the nude in a fenced backyard, they would have a reasonable expectation that no one would try to view them by scaling the fence (or nowadays, by drone). If that same person was sunbathing in the nude in their unfenced front yard, the reasonable expectation of privacy wouldn’t apply.

My understanding of the law is that whether an act constitutes an invasion of someone’s privacy depends on whether they have a reasonable expectation of privacy in that particular circumstance. Thus, while I know that you have no interest in ending up in court on this, were you in court, I could imagine that the verdict would depend on the special efforts made to capture the photo. Did the agent have to come right up to the glass? Did they stand on tiptoes or position their body in an unusual way? 

I think the same general issues would apply when you were doing an interior inspection. For example, I’ve never considered an inspection under RCW 59.18.150 to be akin to what the police holding a search warrant might do. In most cases, I would not expect a landlord to open drawers or closets or to inspect inside a resident’s medicine cabinet. On the other hand, after proper notice, you can document the presence of an unauthorized pet, drug paraphernalia, etc…. 


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