A Look at Security Risks and What Associations Can Do To Limit Liability
Many associations struggle with security on a regular basis. Boards and managers wonder – to what extent are we responsible for the security of our association and our members?
Under California law, an association has a duty to exercise due care for the safety of its residents in areas under association control. Generally, an association is not liable for crimes of third parties unless the association is under notice of a safety concern or potential for crime. Courts have found that where an association was under notice of a potential for crime (e.g., the association knows of increasing crime in the surrounding area and knows a particular area of the association is vulnerable to this crime), it can be held liable for failure to protect against those types of crimes. A key factor is foreseeability. (Frances T. v. Vill. Green Owners Assn. (1986) 42 Cal. 3d 490, 499-501.)
Boards of directors cannot be expected to foresee every possible security risk to an association; however, if an association is on notice of a probability for crime, it may have a duty to take action. With that in mind, what should an association do if it is facing potential crime? Let’s take a look at some common security risks that are plaguing associations today.
Increase in Petty Theft
Associations throughout the state are reporting an increase in petty theft crimes. Some theories for this include job loss due to the pandemic or increased housing costs. Generally, this type of crime is a crime of opportunity. For example, a perpetrator may sneak into a parking garage or onto a community grounds and choose its targets by looking at windows and checking for unlocked door handles. These perpetrators are generally not picking locks, breaking windows, or drawing a lot of attention to themselves. Instead, they are merely checking for the easiest target.
Sadly, there has been a drastic increase in homelessness across the state, and in many counties, law enforcement has limited their actions related to homelessness. This can leave associations frustrated. Not only is it often unsightly to have transients squatting near the association, but it also increases fear and can increase the likelihood of a crime in the area. There have been instances of homeless individuals rummaging through dumpsters, using common area showers or pools for bathing, and engaging in drug or theft activity. Many homeless individuals also suffer from mental health concerns, which may lead to outbursts or irrational behavior.
Package theft has also become all too commonplace. While there are occasions where community mailboxes are broken into, far more often, these crimes are perpetrated when packages or mail is left out, again, a crime of opportunity. Unfortunately, the package delivery companies and mail carriers are doing little to aid the public with these issues, so the burden of doing so is left to the association and homeowners.
Some security strategies include:
Securing doors/gates/stairwells – Check that door strikes and closers are working correctly and self-closing when conducting walk-throughs. If locks or electronic entries are broken, repair them promptly. Have on-site staff or a committee check the perimeter frequently to ensure that doors and gates are secure.
Communication – People are frequently caught up in the hustle and bustle of daily life. Communicate with your residents consistently about the importance of remaining vigilant and securing belongings, especially if there have been reported crimes in the area. Remind residents if they see something, to say something and to keep valuables out of sight in both their vehicles and their home windows when possible. Keep car doors locked, even if you park in a gated parking area. Do not leave valuables or extra sets of keys in the car. It is likely your registration has your address on it, and leaving keys (either common area or unit keys) in the car opens everyone up to risk.
Lighting – Make sure access points and vulnerable areas are well lit. The darker an area, the more likely someone will do something they wouldn’t want others to see. This is especially important when reviewing liability for crimes.
Secure Mail – Package lockers can be a simple way to prevent loose packages on doorsteps or in mailrooms. Several companies offer these boxes, which accept mail and packages from all the carriers. Securing mailrooms can also aid in the prevention of mail theft, as can obscuring the view of the package room from the exterior (think, glass doors or windows). Residents can also sign up for “Informed Delivery” through USPS to get photos of their mail, allowing them to know if something went missing after delivery.
The strategies above are aimed at preventing crime, but what about the ability to go back and actually see what happened when something occurs? Many associations are now choosing to have security cameras installed. In conjunction with the installation, it is important that an association adopt a surveillance policy that clearly outlines that the presence of cameras does not guarantee anyone’s safety. The policy should also identify who can view the cameras and recordings. If the cameras are not monitored, notice should be posted to that effect. The policy should delineate that the recordings are not association records and will only be produced when legally required under California law. This policy should also address the association’s rights with regard to individual residents’ security devices, such as ring doorbells, nest cameras, etc. This may include rules that recordings from these devices may be demanded by the board for related association business. It is important to note that any cameras, including those belonging to residents, should be aimed at areas where there is no expectation of privacy, i.e., common areas. Cameras should not point into other residents’ private balconies, yards, restrooms, swim change areas, etc.
The needs and demands of the world are developing at a rapid pace, and association security is no exception. In order to ensure the safety of your community and insulate the association from liability, it is important that each board regularly evaluates the security of the community and the foreseeable risks it faces.
The board has a duty to exercise due care with regards to its residents. Specifically, when an association is aware of a potential for crime and can take a reasonable precautions to prevent it, the association is obligated to do so.
Copyright © 2022 by California Association of Community Managers (CACM). All rights reserved.
This article from the Summer 2022 issue of The Law Journal is reprinted with permission of CACM. Visit www.cacm.org for additional resources.