Village Green Crimewave

Lighting. Lighting in vulnerable common areas is an important crime deterrent. If a board is on notice that existing lighting needs repair and injuries or assaults occur because it failed to repair or install lighting, the association could be liable. In the Village Green Owners Association, a young woman installed exterior security lights after her condo was burglarized. Although the board knew of criminal activity in the development, it ordered her to remove the lighting because she had not obtained board approval. She complied and disconnected her lights. That night, an unidentified person entered her unit under the cover of darkness and raped and robbed her. She sued the board of directors and won. (Frances T. v. Village Green)

Foreseeable Criminal Acts

Although boards are normally not responsible for others' criminal acts, the Supreme Court held that directors can be held liable for their own negligence. The Court concluded that associations and their members have a relationship that requires boards to exercise reasonable care to protect residents from foreseeable harm. The court found the following points relevant:

• The association knew crimes were being committed against residents. Correspondence from the plaintiff and other residents, along with articles in the association's newsletter, showed that the board knew of the link between inadequate lighting and crime.
   
• The plaintiff's unit had been recently burglarized, and the board knew this.

The prior crimes don't need to be identical to the ones actually perpetrated against a resident. To create liability, boards need not foresee the precise injury to a resident, only that this type of harm is foreseeable. Duty is an essential element of negligence. Duty may be imposed by law, assumed by the defendant, or arise from 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 have a duty to protect residents from foreseeable criminal acts by others in areas under their control.

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 unless a "special relationship" creates 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 was involved 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.

Ways to Increase Security

Associations can take many actions to increase security. 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 who walk the neighborhood and report 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 entrances, exits, and common areas 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 avoid statements that could be interpreted as promises to the membership about 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 our security systems deter crime. However, the association can never be crime-free. For example, someone can enter the property under false pretenses to commit crimes; residents can commit crimes against their own neighbors; residents' guests can commit crimes; or employees can 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.