HOA Duty of Care Re Foreseeable Criminal Acts
Duty is an essential element of negligence. Duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. The existence of a legal duty depends upon the foreseeability of the risk. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) Associations Associations have a duty to protect residents from the foreseeable criminal acts of others in those aeas under their control. (Frances T. v. Village Green.)
Liability for security breaches depends on foreseeability and the circumstances. In Titus v. Canyon Lake Property Owners Association, the court examined whether an association was liable for injuries sustained as a result of a fatal traffic accident in its gated community. A resident of Canyon Lake POA was killed when he was a passenger in a car driven by an intoxicated driver. The victim's daughter sued the association, claiming it had a duty to protect her father from the drunk driver. She claimed the CC&Rs created an affirmative duty to provide a safe and secure environment in the community, which obligated the association to stop the intoxicated driver from using the association's private streets. She argued that:
[The Association] owns, maintains, and operates the common areas and facilities, including streets, within the Community. Pursuant to its bylaws, [the Association] is "charged with 'doing whatever is necessary, conducive, incidental or advisable to accomplish and promote its object and purposes.'" Its "object" is to "promote the common interest and welfare of its members." Among its purposes is to "preserve, protect and police" the common facilities.
The court disagreed. It held that, in general, persons are not liable for the conduct of third parties without the existence of a "special relationship" that would create a duty. Some of the factors used to determine if a special relationship exists include the following:
- Whether there is a "high degree of foreseeability" that an accident will occur.
- Whether the association encouraged or had some involvement in the incident (in this case, the driver's intoxication).
- Whether the association (i) intended or planned the harmful result; (ii) had actual or constructive knowledge of the harmful consequences of their behavior; (iii) acted in bad faith or with reckless indifference to the results of their conduct; or (iv) engaged in inherently harmful acts.
The court found that the association did not make any promises upon which the victim relied,, nor did it create the situation that led to the accident. The court concluded that the connection between the association and the victim was remote, and no special relationship existed sufficient to create liability.
Neighbor-to-Neighbor Disputes
Neighbors in a condominium association had a long-running dispute that ended in a physical altercation and injuries. The injured parties sued the management company and the HOA alleging negligence by both duty for not doing something to prevent the dispute. The association and management argued that they did not owe a duty to contact police or intervene in the dispute. The Court of Appeal agreed and noted that imposing a duty on homeowners associations or their managing agents to intervene and resolve disputes between homeowners would place an untenable burden on them. The Court observed that associations are run by volunteers and do not have police powers or subpoena power. They cannot compel owners or tenants to sit down and work out their differences. Imposing such duties would leave associations liable for the outcome of such disputes without the tools to prevent them. A homeowner association's standard of care is to investigate rule violations and take appropriate action. It does not include mediating, de-escalating, or resolving disputes between neighbors. (Woolard v. Regent Real Estate Services.)
Ways to Increase Security
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:
- Police. Involve the local police and federal drug enforcement agencies in stepped-up patrols and community meetings.
- Neighborhood Watch. Set up a Neighborhood Watch program with volunteers walking the neighborhood and reporting suspicious activity.
- Lighting. Add more lighting around the community.
- Walls & Fences. Where appropriate, add walls and fences around the community to limit access to the development. If feasible, gate the community.
- Cameras. Install security cameras to monitor entries, exits, and common area elements of the community.
- Security Company. Hire a security company to patrol the property.
- 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 and a record of who accessed areas where criminal activity may be occurring.
- Legal Action. Where appropriate, take legal action against owners with problem tenants who violate the governing documents.
- Foreclosure. Foreclose on delinquent owners.
- Owner Diligence. Regularly remind residents with a disclaimer that they must also take reasonable care to protect themselves from harm. When appropriate, remind them to check the Megan's Law database.
- 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.
Annual Disclaimer
Boards of directors should take care not to make statements that could be interpreted as promises to the membership of their safety and security. To minimize potential liability, boards should encourage members to be vigilant in their own security. To that end, boards should include in their annual mailings to the membership a security disclaimer similar to the following:
SECURITY DISCLAIMER. We hope that our security systems provide some deterrence to crime. However, the association can never be crime-free. For example, it is possible for someone to enter the property under false pretenses to commit crimes, for residents to commit crimes against their own neighbors, for guests of residents to commit crimes, and for employees to commit crimes. As a result, the association cannot guarantee your security. You should NOT rely on the association to protect you from loss or harm. You should provide for your own security by keeping your doors locked, refusing to open your door to strangers, asking workmen for identification, installing a security system, carrying insurance, etc.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.