ADVERTISEMENTS

It's been awhile since I've posted, so I figured it would be germane to share with you some information gathered while on was on hiatus from my online alter ego, specifically, regarding security issues and potential liability that your Association may encounter. Now the following applies mainly to Condominium Associations, but the message is one that all Associations can benefit from.

In general, unless there is a provision contained within an Association's deed restrictions that specifically mandates preventative measures for criminal conduct, no duty or liability otherwise attaches to that Association for a failure to protect its members from criminal activity in common areas under its control. However, under circumstances where an Association has knowledge or reasonable belief that a risk of criminal harm exists, then it may have a duty to exercise "reasonable care" to protect residents and their guests in these common areas.

For condo residents, Associations would do well to provide an adequate level of security to afford protection against foreseeable criminal attacks. Because of the doctrine of "negligent security", an injured resident or visitor can seek recovery of damages against an Association for foreseeable criminal attacks by third parties committed while on the property. These "foreseeable" attacks could be those acts which have occurred under similar (or not) circumstances in the past or where there has been a proven breach of security measures such that the Association is given actual or constructive notice of the activity. This knowledge in turn creates a duty by the Association to safeguard its residents from future criminal conduct. The key inquiry here is "was the possibility of harm so evident that the Association should have taken steps to protect its residents from that harm?"

However, and even when being proactive, an Association needs to be careful in representing to its membership exactly how much security and to what extent such systems will protect the populace. The Association will be exposed to liability if it chooses to elevate its level of security (in an attempt to placate residents and attract potential ownership) but then proceeds to negligently monitor or administer the same. Also, if these security measures are captured in the language of the Association's dedicatory instruments (declaration, by-laws, etc), then the Association must be careful in its wording therein or else face possible liability from breach of contract between itself and the residents as well.

Associations should educate themselves on the requirements to implement security measures on behalf of their residents. Since these residents rely on the Association, sometimes exclusively, for their protection, it is important to solicit feedback and input from them -- residents need to notify the Association of any perceived or real security issues and, likewise, the Association should keep the community informed of security issues that it encounters.

Final Words for the Association contemplating a security plan or renewal of same: (1) meet the required level of security, (2) heightened security measures must be maintained and monitored, (3) resident feedback and two-way communication is essential to stay apprised of potential and material threats to the community.

*Thanks to Robert M. Meisner, Esq. Dangerous Residents and Other Security Issues: Protecting Members While Preserving Rights, 27th Annual CAI Community Association Law Seminar, January 27, 2006.

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