Homeowner Associations, Condo Associations and Duty of Care
In recent years, a number of Florida-based homeowner’s associations (HOAs) and condominium owners associations (COAs) have been successfully sued by victims of crimes or safety incidents for failure to fulfill a duty of care. In several cases, the HOAs and COAs were found liable for negligent security or for failure to perform their duty of care to the people in the communities they manage.
HOAs and COAs have, to a certain extent, a moral and legal responsibility to care for the residents of their community, which includes ensuring that they are safe and secure. Failing to provide a secure environment could bring significant financial damage to a community due to lawsuits, damaged reputation and increased insurance premiums.
The best way to manage exposure to this liability is to act proactively, working with experienced professionals in the private sector as well as local law enforcement and first responders to reduce risks and eliminate hazards.
Reasonable Measures in Duty of Care
Managed communities are expected to take “reasonable measures” to ensure the safety and security of their residents. When measuring duty of care, courts would typically interpret reasonable measures to include all measures that residents could reasonably expect based on the nature of the community itself. For example a gated community with guard houses would be expected, reasonably, to provide a higher level of security than one with no perimeter control and security personnel.
In general terms, an HOA or COA might be expected to provide the following:
- Licensed Security Personnel
- Security Audit Report
- Risk Assessment Report
- Access Control Points
- Professionally Installed Security Cameras
- Barriers to Entry
- Traffic Control
- Relationships with Local Law Enforcement
- Relationships with Local First Responders
- Fire Security Measures
- Slip and Fall/Trip and Fall Measures
In addition to having a duty of care, associations are expected to act competently in the execution of the security measures they have undertaken. In other words, if an association is attempting to undertake advanced security measures they should do so competently and professionally. The responsibility to act competently varies according to the extent to which the association is employing a reasonable measure. For example, there is no explicitly stated legal obligation for an association to install security cameras. However, if an association were to install cameras, they may be expected to have them installed by a licensed professional, turned on and the video data recorded and stored. If an association does not have a security camera system, they may not necessarily be liable for crimes committed on that basis. If they do have a security camera system but the cameras were turned off the day a crime was committed, then they may be liable for negligent security.
Likewise, a sleeping security guard in a gated community could potentially create a liability for the association that would not have existed had there been no security guard in the community.
The best way to ensure that security and safety measures are taken competently is to hire licensed professionals with a solid track record to implement them.
“The best way to manage exposure to this liability is to act proactively, …to reduce risks and eliminate hazards.”
In addition to implementing effective and reasonable measures with the help of licensed security services and professionals, associations should also consider protecting themselves against negligent security lawsuits by including certain clauses in their providers’ service level agreements and adding disclaimers in their governing documents.
In either scenario, whether adding language to a service level agreement or amending the association’s governing documents with disclaimers, the association can consult an attorney experienced in HOA and COA matters. Once the specific language has been drafted, the board is required to meet officially to review, agree upon and approve the language before it is added to the governing documents.
Communications and Culture
An important aspect of maintaining a safe and secure environment for HOA or COA residents is to communicate best practices to the owners and residents themselves. Letting all members and residents of a community know that they share in the responsibility ensures that the community will not assume that 100% of the effort needs to be made by the association. Residents can be asked to lock windows and doors, not block emergency exits and not prop open perimeter doors. Owners can be advised to install security alarms, place exterior lighting fixtures and get security cameras professionally installed on their properties.
In addition, proactive COAs and HOAs can assume a zero-tolerance stance to known criminal activity that takes place within or around the community. Maintaining strong relations with law enforcement partners is a good way to eliminate the threats to security that come from continued illegal activity within a community.
Proactive Action is Best
By working closely with highly experienced legal counsel, security professionals and safety experts, and by maintaining close contact with local law enforcement and first responders associations can reduce the likelihood of negligent security claims. HOAs and COAs can further reduce their exposure to liability by communicating to residents and owners. Communications can emphasize that all members of an association, not just the leadership, are responsible for maintaining the safety and wellbeing of the community.
South Florida Law
As South Florida’s go-to law firm for HOA and COA related matters, South Florida Law PLLC has the resources and experience to reduce and manage the liability of associations through proactive measures. Should disputes or security incidents occur, we represent both associations and members of associations, helping our clients by defending their rights according to Federal law, Florida Statute, local regulations and the governing documents of their community.
With offices in Hallandale Beach and Hollywood in Broward County and Coral Gables in Miami-Dade County we serve all of South Florida, home to one of the nation’s highest concentrations of communities run by associations.
If you are involved in a security-related matter involving an HOA or COA, reach out to us via our contact form or by calling (954) 900-8885.