Without question, the Trayvon Martin case in Florida has raised some crucial questions. In case you have not heard of it, an association member carrying a gun, purportedly on “neighborhood watch”, shot and killed a hooded teenager who was out in the common area late at night. There have been serious ramifications for the association and the association member. This blog is not about the outcome of that particular situation, but about the questions rippling across the country …

 Does an HOA have a duty to provide security? And if it does, how much?

 The cases across the country if nothing else do send the consistent message that the liability of an HOA when sued by person harmed by a criminal act in the development are pretty fact specific so it is hard to draw conclusions an HOA can rely on for guidance. But there are some things to think about.

 Use of the Words “Safety, Security and Surveillance”: An HOA has to be careful about using these three words because they have been found to trigger a certain level of reliance on the part of owners.

If a board describes any efforts as safety measures then owners will expect to be protected, and may drop their guard or avoid doing things for their own protection.  For example, notifying owners that a neighborhood watch program will be adopted by the association to provide safety to residents gives the residents a false sense of security and the association can become a target if anyone is hurt or property is damaged by criminal activity. A better way to handle things in my view is, if owners ask, to let them know that if they want to consider forming a neighborhood watch that they could use the association meeting room (if there is one) to arrange a meeting with local law enforcement and find out what is involved, and that it is up to owners to form the group, not the association. The association, in my view, should let the owners take the lead – because the success of a neighborhood watch group depends on the effort of the volunteers. If the association “assigns” volunteers and they feel “empowered” in some way or the program fails in some way the HOA could easily become the target of a claim.

 If a board posts signs that state “the area is under surveillance” then owners might assume someone is constantly watching or cameras are constantly rolling and that if there is any criminal activity in the area there will be a record of it.  There was one case where an owner demanded copies of “surveillance” tapes in the parking area to try and identify a car burglar. When the tapes could not be produced (because of tapeover every week), the association was sued.  Perhaps a better approach is to provide signage, with or without cameras rolling, that the area is being “monitored [perhaps even “as a courtesy”) and that violators are subject to prosecution”. Of course, depending on the purpose, the wording may be modified, but the idea is that the word “surveillance” connotes watching and the word “monitored” is sufficient vague to avoid an unreasonable expectation being formed.

 If a board tells owners that security officers patrolling the streets for the safety of owners, or that security cameras have been installed it could give owners the impression that measures have been taken to guard against a violent act (consult Webster’s dictionary for the plain meaning of the word to see why). Alternatively, a board might notify owners that periodic “drive-throughs” have been arranged to check for unusual activity or provide an extra measure of vigilance but that owners should also report any usual activity and remain vigilant – and tell them why.

An HOA generally does not have responsibility for criminal acts, but it may do something that creates a duty. If an HOA is sued, there is a consistent threshold test involving a basic duty of care which involves an inquiry as to whether the board had a duty given the circumstances, whether it breached the duty, and whether that breach caused the damage or loss. If the HOA creates an unreasonable expectation or falls short in follow through in some measure it plans to implement then the duty could be “higher” than usual.

 However, some of the courts have focused more on the status of the perpetrator at the time of the injury. If it was a trespasser, the courts don’t tend to find that there is a duty to stop the person. If the harm was the direct result criminal behavior the same usually applies.

 Some courts focus on the relationship. The leading case in California held the board to a higher “special” duty based on a landlord tenant standard and found the board had a duty to protect the owner from a hazardous condition (which happened to be criminal behavior) – i.e., that it should have acted more responsibly on a request for extra lighting in a dark area, when there had been some reported criminal activity in the general area. It was a “bad facts” case that lead to a harsh decision – the outcome of the case was that the individual directors could be sued (an unusual situation given the immunities for directors in California Corporations law and most documents). The case was Frances T. vs. Village Green and what happened was this: Frances T and some owners asked the board to approve more lighting in the common area near the entrances to the units. The board did nothing. Frances T consulted with a lighting contractor and had lights put up that tied into the Common Area lighting. The board demanded that she apply for approval and in the meantime disable the lights. Turning the lights she installed off affected the other lighting –there was a criminal attack and the lawsuit followed.

Foreseeability is a big factor if there is a claim against an HOA for lack of appropriate “security” measures or for liability for harm of a resident. So important questions are what is the risk presented? Is foreseeability obvious?  What action was taken in light of the risks?

On the one end we have a neighborhood watch situation gone south, i.e, the Trayvon Martin case. On the other end we have the Frances T case where the board not only did nothing, but got “in the way” of an owner’s attempt to protect themself and their neighbors.

 So you can see why a professional advisor might come in handy, whether it be consulting a lighting contractor to assess lighting or a lawyer to assess risk of liability.

Here are some examples of ways to protect an association.

Association has storage area set aside for residents to keep bicycles. Area contains signage “Lock your bike – owners assume all risk when using this area to store bicycles,” or “The HOA is not responsible for loss of any bicycles – park bike at your own risk.” OR – The Board could require signature on a waiver to issue permits to park bikes in the area.

If you have a lobby attendant, call them a lobby attendant and not a security guard. If the intention is to closely monitor the coming and going of people arrange some responsible means of monitoring it via cameras or a sign in and out sheet and make sure any attendant does not let anyone including familiar faces in without signing in. That is the only way that the HOA will have a record of the coming and going of all persons.

 What about employing someone that has a criminal past? There should be some thought given to how and what background checks are pertinent for hiring. Things to consider are what access will the employee or contractor have to association assets, funds, private information, keys, families, homes, children, etc. Some boards have asked about background checks on boards. I do not know that to be a prevalent process but if a board is going to implement it, the documents may need to be amended by approval of the members – so that board candidates will know it is going to happen and so that any adverse findings can be used appropriately.

 The best advice is to consult the right kinds of experts to assess the problem, propose solutions, and appropriately protective measures. Remember, every case against an association is adjudged based on the facts, not one particular legal principal.