Recently, some homeowners associations have reported criminal conduct within their communities and asked what their responsibility may be in fighting crime in their neighborhoods. First, boards and managers should understand that they are not law enforcement. Their ability to respond to criminal conduct is subject to limits placed on them by law and under the governing documents. Nonetheless, associations have a duty to protect residents in accordance with Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490. The question is the scope of that duty.
As a brief refresher, in Frances T., the condominium development in question was subject to what the plaintiff described as an “exceptional crimewave.” That included crimes against persons and property that occurred throughout the community and a burglary at the plaintiff's unit six months before she was later assaulted in her unit. Following the first burglary, the plaintiff and her neighbors began asking the board to install additional lighting in the common area adjacent to her unit. Two months before the assault, she installed lighting herself, which the association demanded she remove. Her deadline to remove the lighting came two days before the assault, and she complied with the association's request on the day a criminal entered her home to assault and rob her.
The court, in that case, found that the association had a duty to exercise due care for the residents' safety in those areas under their control. It also found that the association was aware of the need for additional lighting, that lighting could aid in deterring criminal conduct, and, relatedly, the link between the lack of lighting and crime. This “landlord” standard of care led to a finding that the association and its board of directors were legally negligent in failing to deter criminal conduct.
However, that ruling is not explicit in weighing the burden on the association if it were placed under a duty to conduct itself in the manner proposed by an aggrieved party against the degree of foreseeability of the specific harm to that same aggrieved party. More specifically, a resident may demand action, but that action may place a burden on the association that outweighs the potential for harm to the individual.
For example, several associations we are aware of appear to have had one-off incidents of violence or threats of violence in the common area. Would a resident's demand for 24-hour security patrols create potential liability if the association declines due to the significant cost of meeting that demand? In all likelihood, no. The association can likely find a less burdensome alternative, and one incident does not create foreseeability like the “exceptional crimewave” in the Frances T. case did.
In cases involving residents who threaten or inflict violence upon others, the association certainly has the option to use its enforcement powers under the governing documents. It may even be able to take advantage of restraining order laws, depending on the circumstances. However, while the association can enforce the governing documents, it does not have the power to stop active criminal or violent conduct in the community. Associations should advise members to report illegal activities to the proper authorities.
Though a homeowners association can take measures to promote the safety and well-being of its residents, it is not the police. If your homeowners association is concerned about criminal conduct in the community, it should consider what efforts and changes it can make in operating and managing the common area and advise members to report criminal conduct to the police. Our office is always happy to assist if the association or management has any questions.
