Minimizing Liability for Community Associations
Minimizing Liability for Community Associations
by Lauren DeVoe, Morris DeVoe
The flickering fluorescent light cast long, eerie shadows as the intruder slipped through the cracked security door. He'd bypassed the keypad with surprising ease, the lock mechanism old and worn. What he did once he gained entry into the condominium building would shake its residents to the core. Now those residents want accountability …. But is their association responsible for their suffering?
Whether a community association is responsible for a stranger’s criminal actions depends heavily on the facts. Who left the door cracked open? Was the Management Committee aware that the keypad needed repair? And perhaps more importantly, if it knew, had the Management Committee taken any steps to repair or replace the keypad?
While community associations in Utah don’t generally have a responsibility to protect their residents from third-party crime, that is not always the case. There are a number of theories under which a community association could be responsible for someone else’s bad acts. Management committees and association managers should be particularly conscientious about two: foreseeability and voluntary undertakings.
First, where a community association has notice of crimes occurring in areas under its control (like a Common Area parking lot), a future third-party criminal act may be found to have been foreseeable. Foreseeability, especially when coupled with inaction, can result in a community association’s liability.
Second, if a community association has taken on the role of providing protection from crime but does so negligently, it may be responsible if crime occurs as a result of being negligent. A community association may be found to have voluntary undertaken such responsibility if, for example, it advertises resident security or collects assessments specifically for the purpose of security.
Here are some tips to help avoid unnecessary liability:
- Be mindful of resident requests and expectations. Avoid creating a false sense of security by using security cameras or patrols that are not actively monitored.
- Use appropriate language. Instead of "security cameras" use "cameras" and instead of "security guards" use "attendants" to avoid implying a higher level of security than is provided.
- Respond to resident requests for security measures. Weigh the aesthetic and privacy concerns against the potential liability if a resident is subsequently the victim of a crime, especially if they requested additional security measures.
- Educate residents about security measures. If security features are installed, explain their limitations and purpose in writing to residents.
- Maintain the common areas. Promptly repair and maintain features like doors, gates, and locks to reduce vulnerability.
- Consider adding an exculpatory clause to governing documents. This clause can help limit liability for future negligence, but it typically won't cover willful or wanton misconduct.
- Invest in quality insurance. General liability and directors’ and officers' policies are essential for associations.
- Consult legal counsel. These tips are not a substitute for legal counsel specific for your community. An attorney familiar with your association and governing documents is instrumental in limiting liability for third-party crime.
Lauren DeVoe is a partner at Morris DeVoe, a law firm exclusively devoted to the practice of community association law.
*This post is a short summary of Security Services: What Do Community Associations Have a Duty to Protect? Written by Lauren DeVoe, Esq., Maria C. Kao, Esq., Bill Gourley, Esq. and available at https://www.caionline.org/getmedia/497244e6-429a-48f6-8b43-b8719522f245/2024-Security-Services-What-Do-CAs-Have-a-Duty-to-Protect.pdf