Security, A Fiduciary Responsibility?

I believe it would be a fiduciary responsibility of the board to PROVIDE FOR the security of common areas and elements, to the extent necessary to protect them. In the case of a huge HOA, with pools, tennis courts, playgrounds, water features, etc., that duty may require them to pay for security personnel, or cameras, or other means of security. In the case of a more common HOA with a couple common lots for water retention/open play, and perhaps an entrance sign, that may extend to providing for proper lighting of the area to lower the risk of vandalism.

I don't think you will find too many that believe that a board is elected and has a responsibility to be paid semi-police. And certainly, it is not the board's responsibility to police MY home security, etc., until it infringes on the rights of others or breaks covenants (ie, my barbed wire perimeter fence and 24 hour spotlights).

Dennis,

Sorry to muddy up the water even more, but I'm curious as to how you paid these individuals as well; as employees? (Did you provide W-2s and withhold SS taxes?) As private contractors? (Did you provide 1099-MISCs if the annual amount was over $600?)

DennisS7,

You wrote that “Our documents are silent on security.” So I assume that you have carefully read them all. I comment because I have seen words such as (possibly more applicable to Condominiums than HOAs):

Each Owner and every occupant of a Unit, and their respective guests and invitees, shall be responsible for their own personal safety and the security of their property

The Association is not an insurer or guarantor of safety or security nor shall it be liable for any loss or damage by reason of failure to provide adequate security or the ineffectiveness of any security measures undertaken.

The Association may, but shall not be obligated to, maintain or support certain activities designed to enhance the level or safety or security

Dennis

Go to this chat's home page and read the article about Florida HOA's Warned.

As you know the recent shooting of a young man by a "Neighborhood Watch" person in FL will more then likely come back to legally haunt/cost that association.

A very touchy subject right now and one I might give a wide berth to.

Hope this helps.

Hi Dennis..
I'm so glad you brought up this matter!
Our association's declaration is very clear on this subject (see attached snippet from our docs) and we have a Neighborhood Watch Program in place. We recently (the Board) had discussions with the NW regarding language used in their E-blasts or other communications and in particular regarding any inference of their efforts making us more SECURE!

An interesting read from Attys Becker and Poliokoff's website adresses this with the following position....

One issue is whether the association has created a reasonable expectation in its residents that it will provide security from criminal activity. There have been cases in Florida where a community was specifically marketed as safe and secure and the association provided security guards, sometimes armed, so that members reasonably expected the association had assumed some duty to protect them. In those cases, when criminal activity occurred, the court found that the association was liable because it had assumed the duty to protect its residents. Therefore, one preventative step that we advise associations to take to reduce the likelihood of being held liable for some criminal act is that the association not provide “security”, but provide only “access control”. Moreover, well-written governing documents of an association have a disclaimer provision in all capital letters and bold
type advising all residents that the association is not responsible for their personal security. While these steps may help the association to deflect liability, there is no guarantee that these disclaimers will completely insulate the association.
In fact, case law has been established in the landlord-tenant situation, as well as in other, similar situations where the courts have determined that a special relationship exists between tenants and the landlord. The courts have determined that there is a duty for the landlord to protect persons, or at least to warn persons of potential dangers, whether or not the landlord has done anything to create a reasonable expectation that it would
protect the persons in question. While this “special relationship” concept has not, to my knowledge, been extended to community associations, it is possible that a court may declare that a special relationship exists between associations and its residents at some time in the future. In any event, where there is known, past criminal activity, it is very likely that the association has at least a duty to warn residents, and possibly a duty to take extra steps to protect residents and their property. In the situation that you describe, perhaps extra access control personnel who patrol the perimeter would be in order. Ideally, the local police agency will
assist with these extra security measures.

Full article.... http://www.becker-poliakoff.com/pubs/articles/adams/adams_2008_10_19.pdf

Hope this doesn't muddy the waters for you...... my intent is to offer some "food for thought"

Ann

Dennis, Tim -

Dennis, at least you did the employee and tax thing OK.

But, Tim raises a valid point. Does your insurance provide coverage if a volunteer (employee) injures another person (or property)?

There's an interesting article on the home page of this site you might want to check out: "Homeowner Groups Warned."

Hi Dennis:

Potentially the HOA has a fiduciary duty regarding items in the governing documents. This also can pertain to some categories regarding “reasonable judgment” regarding whether to allow owners to install certain items such as exterior lights, etc. for safety reasons, if requested by the owner.

Now I prefer HOA’s which have minimal items in the documents for items already covered by local government, animal control, police, etc. An example I have used before is most Cities will have ordinances where all dogs must be on a leash. Yet the HOA will also have the same rule. Now if a neighbor’s dog is off of a leash and bites someone there are two potential scenarios:

1. The individual bit can call local police and animal control and maybe seek legal litigation against the dog owner regarding the pet’s actions. In this instance the HOA does not regulate leash issue in governing documents and leaves the responsibility on the local authority.

2. If the HOA has a rule about dogs being on a leash and the dog was not on a leash, then the individual bit could possibly also sue the HOA. This would be due to the fact the dog owner violated the governing documents and the HOA is legally responsible for enforcing everything within those CCR’s.

If your documents are silent regarding security then one of the reasons you pay Taxes is to pay for your local police.

If the neighbors want to have a neighborhood watch after the last incident in Florida then it potentially should be the neighbors deciding and doing this task and not involving the HOA entity. If it is an HOA corporation sponsored neighborhood watch then the HOA is potentially taking on the legal responsibility. As John and Bruce noted be sure to read the News Article regarding the recent teen killed … his family is considering suing the HOA for the neighbor’s actions because it was an HOA sponsored neighborhood watch. Be careful when taking on certain legal responsibilities not required by the governing documents.