Duty of Care. Associations have a duty to exercise due care for the safety of residents and can be liable for failure to take reasonable steps to protect residents from foreseeable criminal activity.
[T]he Association is, for all practical purposes, the Project's "landlord." And traditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents' safety in those areas under their control.
As concluded above, the Association and the Project's residents also stand in a common law relationship, similar to that of landlord and tenant, that requires the landlord to exercise reasonable care in protecting tenants from criminal activity.
.. the Association owed a duty to plaintiff to protect her from the foreseeable criminal acts of others. (Frances T. v. Village Green.)
Even when there is a special relationship between the parties, a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. The scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. In circumstances where the burden of preventing future harm is great, greater foreseeability is required; where the burden is relatively low, a lesser degree of foreseeability may be required. (Wentworth v. Sierra North Village HOA; internal cites and quotes deleted.)
Possible Remedies. The actions an association can take are many and varied. Following are some of the steps that can be taken to lessen crime in a development:
1. Police. Involve the local police and federal drug enforcement agencies in stepped up patrols and community meetings.
2. Neighborhood Watch. Set up a Neighborhood Watch program with volunteers walking the neighborhood and reporting suspicious activity.
3. Lighting. Add more lighting around the community.
4. Walls & Fences. Where appropriate, add walls and fences around the community to limit access into the development. If feasible, gate the community.
5. Cameras. Install security cameras to monitor entries, exits and common area elements of the community.
6. Security Company. Hire a security company to patrol the property.
7. Security Keys. Switch from regular keys that can be copied and distributed by owners and tenants to friends and family to computer operated key fobs and smart cards. When fobs and smart cards are lost, they can be deactivated. This provides tighter controls over who can access the community. It also provides a record of who accessed areas where criminal activity may be occurring.
8. Legal Action. Where appropriate, take legal action against owners with problem tenants who violate the governing documents.
9. Foreclosure. Foreclose on delinquent owners.
10. Owner Diligence. Regularly remind residents that they must also take reasonable care to protect themselves from harm. When appropriate, remind them to check the Megan's Law database.
11. Newsletter. Report criminal activity to the membership via the association's newsletter so members are aware of the threat and can take appropriate measures to protect themselves.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.