Published on: September 23, 2010
Community association boards and managers spend a lot of time worrying about legal liability, and with good reason. Multi-million-dollar awards to residents who sue their associations for failing to provide adequate security are hard to ignore. So are statistics such as these: The cost of settling a negligent security claim averages between $500,000 and $600,000, according to some industry estimates; the average jury award to plaintiffs who allege security breaches by property owners is more than $1 million; and the cost of just defending these claims is $100,000.
Those are scary numbers, to be sure. But they shouldn’t scare boards into doing more than they are required to do to provide security in their communities.
This is not to suggest that board members shouldn’t be concerned about security; they clearly should be both because they don’t want to see their neighbors robbed, injured, or worse and because they don’t want the association to be liable for the damages resulting from those injuries. But the key liability question for boards is: What must they do to reduce the risk that judges or juries will find them to have been negligent in addressing the community’s security needs? How extensive are the association’s security obligations? The answer, in most cases, is not nearly as extensive as many boards assume.
A plaintiff alleging that a community association’s security measures were inadequate must demonstrate that:
- The association had a duty to provide security; and
- It failed to take reasonable steps to fulfill those obligations.
Courts in different jurisdictions set different standards, but a community association’s security obligations are generally similar to those of a landlord, which is to say, they are primarily maintenance obligations, for example: making sure common area doors and locks are functioning properly and that common area windows are secure and replacing light bulbs in hallways, stairwells, garages, parking lots and laundry rooms. Neither community associations nor landlords are required to guarantee the security of residents and their guests. Unless the condominium’s governing documents include security on the list of association responsibilities, boards have no obligation to hire security guards, install cameras and motion detectors, or implement any other specific high- or low-tech security measures.
Where community associations will and do get into liability trouble is by promising protections they don’t provide, failing to maintain security-related equipment they have installed, or failing to continue security measures they have implemented. If an association hires security guards and then fires them because of budget constraints, a resident who is subsequently robbed or assaulted will almost certainly claim the board was negligent, and the odds are good that a judge or jury will agree. An association usually incurs greater liability risks by eliminating a security-related service than by never providing the service in the first place.
Managing a community association’s security liability risks has much to do with managing the expectations of owners. While the association has no specific security-related obligations, it can acquire those obligations and the liability related to them if board members tell owners the association is responsible for protecting them or allow them to believe that to be the case.
This is one reason, although not the only one, we advise boards that install cameras to describe their purpose as “surveillance,” not “security.” Security implies that the camera provides a measure of protection. In fact, cameras simply record crimes; they do little, if anything, to prevent them. And they may actually do more harm than good by creating a false sense of security that makes residents less vigilant and less cautious than they should be.
A California case dramatically illustrates that point. The owners of an office building in California installed several fake cameras in their garage, ostensibly to deter crime. A woman leaving late in the evening was assaulted on her way to her car and fought her assailant vigorously until they reached a point in front of one of the cameras. Unaware that the cameras were just for show and assuming help would be forthcoming, she stopped struggling and was brutally raped. A jury found the building owners negligent and awarded the victim more than $1 million in damages.
The key points for community associations: Don’t install fake cameras, ever. Make sure any cameras, motion detectors, or other security-related devices you do install are always working. And most important – explain carefully to owners that the cameras provide surveillance only; they can’t prevent crime and do not reduce the need for owners to remain vigilant, to take common sense precautions (locking their cars and not leaving valuables in them) to protect themselves, and to report any suspicious individuals or activity – not to the board, but to the police.
Call the Police
The latter point (call the police) is perhaps most important. Many condominium owners assume that when they move into a condominium community, they enter a world completely different from the one they inhabited as owners of detached single-family homes or apartment tenants. If single-family homeowners are robbed, assaulted, or fear for their safety, they call the police. If a crime wave envelops a neighborhood, single-family owners don’t (usually) hire private security guards; they demand more police protection. They don’t hire a private fire brigade to deal with fires – they expect the local fire department to take care of those emergencies.
The response of condominium owners should be the same. Condominium owners pay property taxes and are equally entitled to police and fire protection and other municipal services. They don’t relinquish those rights – and transfer those obligations – to their community association. A community association board is not a police force, it is not a fire department, and it is not required to provide those services.
Association boards cannot ignore security concerns, however. In addition to maintaining common areas, as noted earlier, boards must respond reasonably to security risks that are identified or reasonably foreseeable. If someone reports a missing bulb or broken light, the board should make sure it is repaired or replaced. If shrubs become overgrown (providing cover for assailants), boards should make sure they are trimmed. And they should inform owners of security risks in the condominium community or surrounding neighborhood.
In some cases – if criminal activity is escalating in the community or surrounding area — the board might request additional police patrols or ask the department to send an officer to talk to owners about safety precautions. Forming a volunteer “community watch” group is another option if owners are concerned and willing to undertake that effort. The board can also ask the police department to provide a basic risk assessment for the community, or hire a professional security firm to provide a more comprehensive risk evaluation. Reviewing area crime statistics (available from the police department) is another easy way for the board to identify any security concerns that should be communicated to owners. With the exception of a security firm’s risk assessment, none of these measures involve any out-of-pocket costs and all can go a long way toward demonstrating to a court (should this become necessary) that the board has taken reasonable steps, within the limits of its obligations and authority, to address security concerns.
Don’t Just Say No
While boards are not required to implement specific security measures, they should approve reasonable requests from owners to implement security measures of their own. A 20-year-old California case (Frances T. v. Village Green H.O. Association), still cited today, highlights the importance of this advice.
The plaintiff homeowner, concerned about a rash of burglaries and thefts in the area, asked the board repeatedly for permission to install additional lighting near her unit. The board had been discussing security concerns for several months, but hadn’t acted on them and didn’t respond to this owner’s request, so she installed the lighting on her own. That drew an immediate response from the board, which ordered the owner to remove the unauthorized lighting and rejected her request to leave it in place until the board could propose an alternative.
The owner complied, but because her supplemental lights were wired into the same circuit as the association’s existing lighting (which the owner felt was inadequate), disconnecting the owner’s lights left the area without any lighting at all. Shortly after that, the owner was raped in this darkened area, and a court found the association as an entity and the board members individually to have been negligent and liable for damages as a result.
A 1991 Massachusetts case (Hawkins et. al. v. Jamaicaway Place Condominium) produced a contrary result. In this case, the association’s board determined that the bars an owner wanted the association to install on the outside of her windows represented an architectural improvement requiring the approval of 75 percent of the owners – a benchmark the owner was unable to meet. When she was subsequently raped in her unit, the owner sued the association for negligence, but the state Supreme Judicial Court rejected her claim, ruling that the owner could have installed the bars on the inside of her unit without permission, albeit at her own expense.
While this decision affirms the consensus view – that an association’s security obligations are limited ¾ it does not eliminate the need for boards to take owners’ security concerns seriously and to approve reasonable security measures (stronger locks on their doors and additional lighting around their units, for example), as long as those measures don’t harm or create a nuisance for other owners.
If, as in the Jamaicaway Place case, owners refuse to approve a reasonable request, the board might want to seek a court opinion either upholding the owners’ decision or overruling it. The association would have to foot that legal bill, but the costs involved would be miniscule compared to the damages for which the community could be liable if it loses a negligent security claim.