SECURITY AND SAFETY CONSIDERATIONS FOR CONDOMINIUM ASSOCIATIONS AND PRACTICAL SOLUTIONS FOR LIMITED LIABILITY

Published on: February 14, 2013

In Massachusetts, the general rule is that a property owner owes a duty to all lawful visitors on the premises to use reasonable care to maintain the property in a reasonably safe condition in consideration of all the circumstances.

Generally, a landowner does not owe a duty to affirmatively protect visitors against the dangerous or unlawful acts of third persons. Similarly, landowners typically do not owe a duty to warn of open and obvious dangers on their premises, because it is not reasonably foreseeable that a visitor exercising reasonable care for his or her own safety would suffer injury from such an obvious danger.

There are exceptions however to the general rule regarding premises liability where there is a special relationship between the landowner and visitor. In these circumstances, there is a increased duty of responsibility that imposes a duty to warn of a dangerous condition. This is especially true in the landlord/tenant context or where a college student must reasonably rely on others for security and where the visitor is not in control of the property. See Mullins v. Pine Manor College, 389 Mass. 47, 51-52 (1983).

Courts in other jurisdictions have actually held that the relationship between condominium associations and unit owners is analogous to the landlord/tenant relationship with respect to acts on common area and therefore, the relationship is a special relationship upon which the heightened standard of care applies. See Frances T. v. Village Green Owner’s Association, 42 Cal. 3d 490 (1986). While this is an alarming precedent in terms of premises liability for condominium associations, Massachusetts has yet to follow it.

An association may also be held liable where it would not otherwise when it voluntarily acts in such a manner so as to create the perception of security or safety for its residents. Under these circumstances, the association may create the perception that it provides safety or security services upon which a visitor or resident may rely in letting their guard down, placing them in a more vulnerable position than they would have otherwise been in had the association never undertaken any action at all. Such actions may be through the employment of lobby personnel or courtesy officers or through the installation of surveillance cameras. Importantly, the installation of surveillance cameras may carry additional liability in the event that they record people within the privacy of their own units as opposed to simply common area, thereby potentially exposing the association to a claim for invasion of privacy. Additionally, if the association elects to install cameras, it is important that the cameras only record the actions of people and not conversations, as the surreptitious recording of conversations and any transmissions of the same could expose the association to liability under the wiretapping statute. See G.L. c. 272, §99.

However, all hope is not lost. Associations may be able to limit their exposure to liability for the acts of third parties on their property by adopting “no security” amendments to their governing documents upon obtaining the requisite unit owner consent. Through such amendments, the association may expressly disclaim liability for any criminal or unlawful acts which take place on the association property, in spite of any security or safety measures previously undertaken by the association.  In the case of Bradford Square Condominium Association, Inc. v. Miller, 258 Ga. App. 240 (2002), the Georgia Court of Appeals affirmed a trial court decision upholding a “no security” amendment adopted by the association of unit owners as valid.

While there is no case directly on point in the Commonwealth of Massachusetts, it is expected that a similar “no security” amendment to a condominium’s governing documents would be upheld and presumed valid if the proper amendment procedures were followed in adopting the same.

Please contact Jennifer L. Barnett at jbarnett@meeb.com or 781-843-5000 (x157).