CRIME IS BOTH A CONCERN AND A POTENTIAL LIABILITY RISK FOR COMMUNITY ASSOCIATIONS
Are community associations required to protect residents from the criminal acts of third parties? This question usually arises after press reports of a crime committed in a condominium community for which the association is being sued. Until fairly recently, the generally accepted answer was – no. While boards might be required in some circumstances to address the criminal acts, or potential criminal acts of residents – for example, when one resident threatens to harm others – they had no obligation to protect residents from burglaries, assaults, rapes or other crimes committed by third parties who had no relationship with the association.
That long-standing assumption was turned on its head by a 2022 Massachusetts Superior Court decision (Field, et. al. v. Highbridge Concierge, Inc., et al.), which held that boards do, in fact, have an obligation to try to prevent crimes they could reasonably foresee. The underlying crime was horrific (an outsider gained access to a penthouse owned by two doctors and murdered them), and the evidence provided a good illustration of bad facts making bad law. Among other problems, the condominium board was aware of security flaws but failed to address them.
While acknowledging that condominium associations are not landlords, the court found that they nonetheless have the same duty “to exercise due care for the residents’ safety in those areas under the association’s control. “ That duty exists, the court said, if potential threats are “reasonably foreseeable.”
The decision raised two obvious questions: How do you define “reasonably foreseeable” threats and what are associations required to do about them. The answers fall short of being ”crystal clear,” but it is possible to offer some general guidance that may help boards address security concerns in their communities and reduce the association’s liability risks.
Do Something
The key takeaway from the Field decision is a variation on the standard advice to citizens: “If you see something, say something.” For boards, the advice is: “If you know something, do something.” If you know a lock on an entry to the common area is broken, fix it; if you know the light bulbs in the parking garage are out, replace them. Evidence that they knew about security problems and ignored them was damning for the defendants in the Field case.
What makes a crime “foreseeable?” If five cars have been stolen from your garage in the past two months, that is a risk the board can identify and should address. But how could the board possibly foresee that a car would be stolen if cars have never been stolen from the garage before?
The answer is, your risk assessment shouldn’t focus only on what has happened within your condo community. Due diligence for the board includes knowing what is happening in the surrounding neighborhood. If there has been a rash of burglaries nearby, you can reasonably conclude that owners in your community might be targeted. This is a crime you can reasonably foresee.
If you have information about criminal activity in your community or nearby, share that information with owners. Remind them periodically in newsletters and other communications to check their own locks, to be aware of their surroundings, to call the police if they feel threatened, and to report any security concerns (broken locks, overgrown shrubs, etc.) to the board or the manager.
Reducing Litigation Risks
Boards are concerned, or should be, about reducing the risks that community residents will be harmed. These are, after all, your neighbors. But boards also must be concerned about the possibility that the association will be sued for negligence by residents who are victims of third party criminal acts.
Unfortunately, there is no amount of money associations can spend on security, no measures they can implement and no protocols they can follow that will ensure they won’t be sued. But boards can take steps that may reduce the association’s litigation risks and strengthen its defense if it is sued. The first item on this list is something boards should not do:
Don’t do or say or hint at anything that might lead residents to assume the association is guaranteeing their safety. If residents have reason to believe the association is responsible for protecting them, they will almost certainly sue if something goes wrong.
Be proactive. Boards or managers should inspect the property periodically to identify maintenance related security concerns and address them. If you are sued for negligence, “We inspect the property weekly and all the lights were working two nights before the attack,” will sound a lot better to a judge or jury than, “No one told us the lights were out” or “We knew but we hadn’t gotten around to fixing them.”
Use common sense. You don’t have to adopt the most expensive high-tech security measures installing stronger common area doors or better locks, adding lighting, trimming bushes and shrubs so they don’t create natural hiding places or obscure windows and doors are all reasonable, low-cost steps associations can take to improve security.
Install cameras in lobbies, parking garages, and near entrances. But don’t call them security cameras. Call them surveillance cameras and emphasize that they will not be monitored 24/7, but rather will record actions in portions of the common areas, but won’t prevent them.
You don’t have an obligation to install cameras, but if you do, you will incur an obligation to maintain them. Remember, we’re talking about reducing litigation and liability risks. The owner robbed at knifepoint in the parking lot will have a reasonable claim if it turns out that the security camera located there has been broken for six months and the board has ignored multiple requests to repair it.
If you add a security feature, think carefully before removing it. If the board decides it no longer needs the security guard it had hired, document the reason for that decision and make sure owners understand it. Boards arguably face greater liability risks by eliminating an existing security measure than by never providing it in the first place.
Consider hiring a security expert to recommend measures you might add or improve. But don’t request a written report. The board’s decision not to implement some recommendations could be used as evidence in a negligence suit. “If the board had only hired round-the-clock security guards, I would never have been robbed.” The board can certainly consider the costs when evaluating different security measures. But a decision that seems fiscally responsible to the board may look like something else to a court considering the association’s potential negligence in a wrongful death suit like the one that produced the Field decision. “How much is a life worth” is a question you definitely don’t want to have to answer in court.
How much should boards do – and how much are they required to do – to address security issues? These are different questions, the answers to which will be different in different communities.
But when they are debating the pros and cons of specific security measures, board members might do well to remember that as a general rule, we are more likely to regret the things we don’t do.
If you have questions concerning security and/or liability please contact Mathew Gaines at mgaines@meeb.com, or any MEEB Attorney at law@meeb.com.