Increased
Association Liability for Criminal Acts That Occur Within the Community
A recent
case decided in South Florida may change the duty that Condominium and
Homeowners’ Associations have in regard to prevention of criminal acts
within their communities. The case of Vasquez and Martin v. Lago Grande
Homeowners Association and Centurion Protective Services could make it
easier to impose liability on Condominium and Homeowners’ Associations
that have security features, employ on-site security or were marketed with
an emphasis on safety from criminal acts.
Case
Facts: The Lago Grande Condominium was a gated community surrounded
by walls five feet high. Each of the condominium’s three entrances had
a guardhouse which were manned twenty-four hours a day by a private company
contracted to provide security.
The developer
of the Condominium originally marketed the complex on the basis of safety
and the Association collected a specific part of the condominium fee for
the security features. The Association gave the security company specific
instructions on the duties that each guard was required to perform at the
complex entrances. The security company agreed in the contract with the
Association to follow these instructions.
The
duties of the guards included: stop all vehicular and pedestrian traffic
at the entrances, including residents; check residents for identification
cards; announce visitors to the resident being visited for permission to
let the visitor into the complex; turn away visitors who were not granted
permission; and call the police for any visitors who refused to leave.
The Association
received many complaints from residents that visitors were entering the
complex without permission. It was determined during trial that the security
company stopped very few pedestrians entering the complex and rarely called
residents before visitors were admitted. These items violated the terms
of the contract with the Association.
A resident
of the condominium, Carmen Martin, moved into the community because it
appeared safe, secure and was gated. Martin was frequently visited at the
condominium by a former neighbor and that neighbor’s children. The neighbor’s
estranged husband (Frank Valle) came to the complex often to pick up his
children, until Valle got into an argument with Martin. Martin told Valle
not to come back to the condominium. Valle, however, continued to gain
entrance into the complex, so Martin went to one of the manned guardhouses
and told the guards that if Valle showed up again, the guards should not
let Valle into the complex. Shortly after this, Valle walked through the
entrance Martin had gone to, walked past the guards without being stopped
and walked to Martin’s unit. At the unit, Valle shot and killed his wife,
shot Martin and then killed himself.
The victims
sued the Association on the basis that the Association had the power, authority
and legal duty to provide adequate security for the community’s residents
and guests.
Previous
Legal Standard: Prior to this case, in order for the victims to recover
against the Association, the victims would have had to show that prior
criminal activity of the same kind had taken place within the community.
The Association’s legal duty to prevent harm to residents and guests from
criminal activity within the community was to merely exercise reasonable
care to keep the premises safe. The key, however, is that there had to
be prior criminal activity of the same kind that had taken place within
the community.
New Standard
Adopted by the Court: In this new case, the Court found that the Association’s
duty to guard against crime or criminal activity is based on the Association’s
security undertaking and obligations of the Association to provide that
security. Under this new standard, no prior criminal activity within the
community is necessary for a victim to recover damages from the Association.
The Court found that since the Association agreed to exercise reasonable
care to prevent any criminal activity from occurring (advertised security
and collected a fee for security measures), it does not matter that the
Valle incident was the first of its kind within that community. The Court
used a series of California cases to arrive at this decision, as this standard
has not been used in Florida.
The Court
found the Association to be liable for damages because the Association
kept the security company despite knowing of problems with the service
being provided, and the Association had delegated its contractual security-related
duties that the Association had assumed in its agreements with the unit
owners.
Impact
of Decision: Condominium and Homeowners’ Associations may now be liable
for criminal acts that occur within their communities, even if similar
criminal activity has never occurred before. Communities that are gated,
have restricted access and/or have contracted with private security companies
are most likely to be affected by this decision. However, the impact could
be limited in the sense that Lago Grande may have held itself out as being
more than just a gated community and the Association had knowledge that
the security company was not complying with the terms of its contract with
the Association.
What
This Means for Associations: Both Condominium and Homeowners’ Associations
should determine:
1. How
was the community originally marketed and sold? Was security or safety
of the community a selling point? Is security or safety a current selling
point?
2. Is
there a fee specifically collected by the Association for security or security
features?
3. If
the Association has hired a private security company, how is that company
performing its duties? Has the Association received complaints about the
performance from residents? Are visitors being admitted without resident
permission or knowledge?
The legal
standard applied by the Court may be limited based on the specific facts
in this case. In addition, as this standard did not really exist in Florida
prior to this, the Court had to stretch and use California cases to support
its decision. However, both condominium and homeowners’ associations need
to be aware of the security measures that have been advertised and the
performance of those security features to reduce the exposure for damages
suffered as a result of criminal activity within their communities.
The firm of Taylor &
Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona
Beach, Florida, was founded in 1981 and has practiced in the area of community
association law since that date. This edition prepared by Scott D. Newsom,
Esq. of Taylor & Carls, P.A. The information contained in The Association
e-Lawyer should not be acted upon without professional legal advice. |
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2005 Advanced Property Management, Inc. All Rights Reserved. |
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