In the past, community association covenant enforcement was often limited to what boards and/or managers could personally document. For example, the documentation could might include a photo of the violating property taken from the street (e.g., an overgrown lawn, unapproved paint color, etc.). Nowadays, with the widespread use of social media community associations may have access to another layer of property owners’ actions. This begs the question: should community associations use social media to investigate potential covenant violations?
Community associations have a legal obligation to enforce the covenants and use restrictions set forth in their governing documents. But boards and managers have to decide how far they are willing to go to prove that a covenant violation actually exists. Social media can be useful for corroborating certain covenant violations that are not readily apparent. For example, a community association could use social media to investigate potential leasing and business use violations. While a quick internet search of the property owner’s name and/or address, for example, may reveal evidence of an unauthorized Airbnb listing or a review from a retail business, these violations may be next to impossible to detect by observing the property. But social media and other online outlets could paint a different picture as to what is going on behind closed doors. At the end of the day, property owners probably did not intend for information on their social media account to be used against them, but it is arguably fair game if the online content was public.
This does not mean boards and managers should begin social media “fishing expeditions” against everyone living in the community. Instead, they could limit online searches to situations where covenant violations are already suspected. Unauthorized short-term rentals are a good example. Imagine this scenario: residents in a condominium report that unfamiliar “guests” are visiting one particular unit, and the timing happens to be in conjunction with a major sporting event. The residents also report that the unit owner was seen leaving a few days earlier with his luggage. It is certainly reasonable for the board and/or manager to suspect that the owner is renting his unit out for the sporting event. As such, the board and/or manager may want to conduct an online search to corroborate this suspicion. If they come across an Airbnb listing or a Facebook post that confirms the rental, the community association now has strong evidence to cite the owner for the covenant violation.
The legality of this practice has not been tested in a Georgia courtroom. That being said, however, a growing number of courts have been admitting social media postings as evidence in a wide variety of cases. This means that the postings are surviving courtroom challenges under the relative evidence code. Drawing from this general trend, it seems unlikely that there is anything illegal about a community association using public social media postings as evidence of covenant violations. So, as long as the information was properly obtained, violating property owners probably do not have a reasonable expectation of privacy over the content.
In sum, to determine whether community associations should use social media to investigate potential covenant violations, they will first have to weigh their underlying enforcement obligations against these relatively new personal boundaries of property owners.