Many owners in common interest communities might assume that when their association takes steps to increase security – such as installing street lights, security gates, surveillance cameras, etc. – they are providing additional protection to the owners who live in the community. However, the opposite may be true. If a community’s governing documents do not require the association to provide security, the association may be undertaking responsibility where it has none. While security measures are a good idea in principle, community associations must be careful not to unintentionally increase their liability for third party criminal acts.
The shooting of teenager Trayvon Martin in a Florida gated community several years ago serves to highlight the issues about whether associations are increasing their likelihood of being sued as a result of taking affirmative steps to increase security, such as through a volunteer neighborhood watch program, or installation of surveillance cameras. Many plaintiffs have, successfully and unsuccessfully, sued community associations based on the failure to take action. But what about claims against community associations based on the actual taking of action?
In Colorado claims against landowners for injuries occurring as a result of a condition of real property are determined by foreseeability, reasonableness, and the legal status of the person claiming injury, whether an invitee, licensee or trespasser. But Colorado courts have also said that the duty of a community association to its members is akin to a landlord/tenant relationship, and an association has those obligations specifically spelled out in their governing documents as well as obligations created by common law, such as the duty to act reasonably under the circumstances. While the duties of community associations may include the repair and maintenance of security and safety equipment, including street lights, surveillance cameras and entry gates, they do not generally extend to protection from third party criminal acts unless those acts were reasonably foreseeable.
Generally, if the community association does not have an obligation to provide for security to its owners, but it elects to do so, then, once undertaken, it has an obligation to perform that function in a reasonable manner. As an example, if an association decides to install surveillance cameras, it should be careful to decide the purpose of the cameras. Are they just there to provide video evidence of who might have caused damage to some of the association’s property? Or, are they really there to provide security monitoring? If they are there for the limited purpose of video evidence, and not security, is there a possibility that the association has created an impression in the minds of its residents and guests that it is providing security? And, if so, has it created liability for itself where none would have existed had it not provided surveillance cameras in the first place?
In a case in Florida, a homeowners’ association was sued after a guest of a unit owner was shot and killed by her estranged husband. The community specifically advertised its safety provisions, including guarded entry ways, yet failed to prevent the intruder from entering on foot. In this case, the court did not require any evidence of prior criminal activity. Instead, the court found that because the association voluntarily undertook the responsibility to provide security, it became legally obligated to guard against crime.
If it is not the intent of the association to provide security, then it should be clear with its residents that it is not providing that service. This should be done by way of written policies setting out the limited purpose of the surveillance equipment, as well as posting signs around the community so residents and guests do not have a false impression about what the association is doing.
It is not safe to assume that the more safety measures there are in place, the more insulated a community is from liability. When a community voluntarily undertakes to provide safety measures, it should always make sure that it is administering and monitoring those measures in a reasonable and responsible manner.
**Many thanks to Wendy Weigler of our firm for providing much of the information in this post.