Community Associations Newsletter - August 2017
Are You Secure? Security Concerns for Community Associations
Community associations, their managers, board members, and members are justifiably concerned about security. Whiteford, Taylor & Preston, LLP serves community associations in Delaware, Maryland, the District of Columbia, and Virginia. Attorneys licensed to practice in each of the these jurisdictions discuss specific security concerns for each below.
Maryland
By: Roberto M. Montesinos, Esq.
We frequently receive requests from our Maryland community association clients to assist in drafting “safety/security” or “neighborhood watch” policies for their respective associations. Requests of this nature are understandable given the desire of community boards to establish a safe and harmonious environment for community residents. However, prior to adopting such policies, or appointing a committee to assist in administering the same, boards of directors must consider certain liability concerns associated with undertaking additional security measures in their communities.
The Maryland Court of Appeals has set forth the standard in determining whether a landlord can be found liable for injuries sustained by residents in multi-family developments. This standard has also been found to apply in the context of community associations. As set forth by the Court, to succeed on a negligence claim, a plaintiff must prove four well-established elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Suzette Hemmings v. Pelham Wood Limited Liability Partnership, et al., 826 A.2d 443 (Md. 2002) at 451.
The Maryland Court of Appeals has set forth the standard in determining whether a landlord can be found liable for injuries sustained by residents in multi-family developments. This standard has also been found to apply in the context of community associations. As set forth by the Court, to succeed on a negligence claim, a plaintiff must prove four well-established elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Suzette Hemmings v. Pelham Wood Limited Liability Partnership, et al., 826 A.2d 443 (Md. 2002) at 451.
If additional security measures are implemented, such as the installation of security cameras, those cameras should be regularly maintained and inspected. Failure to properly maintain security equipment, such as cameras, creates a potential negligence claim against an association if an individual is attacked or injured in the common area.
As stated, community Governing Documents traditionally place an obligation on the board to provide for the operation, care, upkeep and maintenance of the common areas. This is an important duty for the board to fulfill in the context of safety and security concerns because the board has an affirmative obligation to ensure that the common areas are in a state of good order and repair. If a board is aware that a defective condition in the common area exists (e.g. a broken fence, damaged stairwell, damaged entry door), the board should take prompt action to correct the condition. The Maryland Courts have repeatedly stated that a landlord/community association can be held liable where a defective condition in the common area, which it was aware of should have been aware of, causes harm to an individual. This liability may extend as far as injuries caused by a criminal actor who gains access to the community through a broken common area door, window, fence, etc. Therefore, boards, with the assistance of their managing agents, should routinely inspect the property for defective conditions.
Based on this case law, community association boards in Maryland need to understand that they may be creating additional liabilities for the their associations by putting a security or neighborhood watch policy into effect. If a board is interested in implementing such a policy, an attorney should be consulted to review the requirements of the Governing Documents and to determine if any measures can be put into place to insulate the association from liability as much as possible.
Delaware
By: Chad J. Toms, Esq.
Community associations often struggle with whether they should add security measures in order to protect owners and their guests from crime or the negligent acts of others who enter upon the community’s common elements or common areas. While board members want bright line guidance regarding the extent of legal exposure associated with the addition of security measures to a community, the board is often frustrated with legal counsel’s response of “it depends.” Determination of negligence claims related to security and protection of others is a thorny issue. Liability, if any, will depend on the legal duties imposed upon the association, whether by Delaware law, the community’s governing documents or those additional duties voluntarily assumed by a community association.
The starting point for any claim against a community association arising from acts of third parties on community property is an understanding of the basic elements of a negligence claim. The elements of negligence are well settled and are as follows: (1) the defendant had a legal obligation—a duty—to protect the plaintiff from a risk of injury; (2) the defendant breached the duty toward the plaintiff; and (3) that breach proximately caused injury upon the Plaintiff. Roman Oil Co. v. Bibbs, 2013 Del. Super. LEXIS 2061 (Del. Super. Ct. Mar. 14, 2013). The initial question facing the Court upon such a claim will be to which legal measuring stick the association’s actions will be compared.
In determining what legal duty is imposed upon a community association, the Court must first decide the complaining party’s status. If the plaintiff is an owner in the community, their status is very different from that of an owner’s guest. The Delaware courts have very recently addressed the duty owed to an owner’s guest in Hynson v. Whittle, 2013 WL 6913285 (Del. Super. 2013). Hynson, a guest of a unit owner’s lessee, was shot while on a condominium common element, and sued the unit owner and the condominium association claiming they were liable for his injuries. The Court found that, while the guest was a “business invitee” of the unit owner, the unit owner had no actual control over the common elements and could not be found liable for any negligence as to the safety of the common elements. Conversely, the Court found that, because there was no evidence that the condominium association benefitted in any way from its members’ social guests, the guest was only a “guest without payment” or “licensee” of the condominium association. A “guest without payment/licensee” has special meaning under the Delaware Guest Premises Statute, 25 Del. C. §1501, requiring that the condominium association owe a guest without payment only the duty to refrain from “willful or wanton conduct.”
On the other hand, the duty owed by a community association to its owners is much different. An association must first look to its governing documents to determine what duty is explicitly imposed upon it for safety and security in the common areas. Generally, those documents only obligate an association to provide for the control, upkeep and maintenance of the common areas. Should an association’s board fail to repair defective conditions in the common area, for example broken security fences or door locks, it could well have breached the duty imposed upon it in the governing documents. Delaware courts have held that community associations, like property owners or landlords, owe a duty to keep the premises they control reasonably safe from certain hazards, especially those required by the community’s documents. See Latina McNeal Booker v. White Oak Condominium Association, Inc., 2007 Del. Super. LEXIS 268 (Del. Super. Ct. Aug. 28, 2007). It is conceivable that this duty may extend to injuries caused by a criminal third party who gains access to the community because of the association’s failure to secure the common areas or failure to repair and maintain the common areas. For this reason, associations must be diligent in carrying out the express duties set forth in their governing documents.
Lastly, community associations often struggle with undertaking additional security measures such as community watch or security cameras. While each community’s needs are different, the decision to undertake additional security measures should be carefully scrutinized. Delaware law provides that when a defendant voluntarily undertakes additional security measures, a plaintiff’s status may become that of a business invitee. Jardel Co., Inc. et. al. v. Hughes, 523 A.2d 518, 524 (Del. 1987). The undertaking to provide a security program, albeit voluntarily, will obligate the association to perform the task in a reasonable manner with a view toward the dangers to which the program was directed. Therefore, before adding additional security measures, which may be advisable and in the interest of community, an association should conduct a careful analysis to understand if it is assuming a legal duty that it would otherwise not be obligated to perform. Nevertheless, if the association undertakes additional security measures, it must perform those functions with reasonable and ordinary care.
District of Columbia
By: Richa Y. Fortuna,Esq.
Community associations, particularly in urban areas such as the District of Columbia, often consider adopting additional security measures aimed at protecting residents from crime or the negligent acts of other within a community. Such “safety/security” or “neighborhood watch” policies seek to promote a safe environment for community residents and are often believed to have a deterrent effect on crime. Before adopting such policies, however, an association’s Board of Directors should consider the liability associated with undertaking additional security measures. Concerns that should be addressed include whether the policy increases the association’s exposure to liability by establishing a new duty, privacy concerns, and the association’s obligations pertaining to surveillance records.
The responsibilities of a community association are outlined in its “Governing Documents,” which include the Declaration of Covenants, the Bylaws, and, if applicable, the Articles of Incorporation. The Governing Documents often obligate a community association to provide for the maintenance and control of community common areas, but that duty typically does not extend so far as to place an affirmative obligation on community associations to protect residents from the criminal acts of third parties. However, when community associations undertake additional measures to provide security, they may inadvertently create a new duty to protect residents from the criminal acts of third parties. Community associations must therefore be mindful of the resulting liability associated with the implementation of security and/or neighborhood watch policies.
To establish actionable negligence in the District of Columbia, a plaintiff must prove the applicable standard of care, a deviation from that standard of care by the defendant, and a causal relationship between that deviation and the plaintiff's injury. District of Columbia v. Chinn, 839 A.2d 701 (2003).The applicable standard of care for a community association is generally set forth in its Governing Documents, which is why it is important for associations not to expand upon the standard of care by adopting policies that create the impression of additional security. Surveillance cameras often create a false sense of enhanced security as residents assume that there is a deterrent effect on criminal activity and/or active monitoring. Accordingly, failing to clearly notify residents that such policies and measures are not intended to provide security can expose community associations to liability.
Most Governing Documents also require that the Board of Directors maintain the books and records of the association. Our community association clients often ask whether surveillance recordings are to be considered records of the association and whether such recordings are subject to a books and records inspection request. Books and records available for inspection under the District of Columbia Condominium Act do not include records that concern the disclosure of information in violation of law. The District of Columbia Nonprofit Corporation Act further restricts corporate records to those items enumerated in Sections 29-413.01 an 29-413.02. Surveillance records are not considered corporate records under the District of Columbia Nonprofit Corporation Act. Therefore, in order to reduce the association’s exposure to liability related to the release or distribution of audio or visual recordings, requests to review surveillance recordings should be reviewed by the Board Directors pursuant to the association’s policy regarding the same.
Finally, we recommend that community associations adopt a resolution stating the purpose, scope, and limitations of any audio or video surveillance monitoring systems utilized. The resolution should specify what recordings will be retained and for how long, when owner inspection is authorized, how to request a copy of the recordings, and that the association may, but is not obligated to, provide such recordings to appropriate law enforcement officials or such other individuals as designated by the Board of Directors. Residents/owners should be provided a copy of the resolution and signs should be installed in each of the locations where surveillance will be used. These measures will help to protect associations from the risks associated with undertaking additional security measures in their communities.
Virginia
By: Richa Y. Fortuna, Esq.
Our Virginia community association clients often request assistance with “safety/security” or “neighborhood watch” policies for their respective communities. Such policies are aimed at promoting a safe environment for community residents. Before adopting such policies, however, an association’s Board of Directors should consider the liability associated with undertaking additional security measures. Concerns that should be addressed include whether the policy increases the association’s exposure to liability by establishing a new duty, privacy concerns, and the association’s obligations pertaining to surveillance records.
I. Establishing a New Duty and Exposure to Liability
The responsibilities of a community association are outlined in its “Governing Documents,” which include the Declaration of Covenants, the Bylaws, and, if applicable, the Articles of Incorporation. The Governing Documents often obligate a community association to provide for the maintenance, upkeep and control of community common areas, but that duty typically does not extend so far as to place an affirmative obligation on community associations to protect residents from the criminal acts of third parties. Accordingly, when community associations undertake additional measures to provide security, they may inadvertently create a new duty to protect residents from the criminal acts of third parties. Community associations must therefore be mindful of the resulting liability associated with the implementation of security and/or neighborhood watch policies.
The Supreme Court of Virginia has set forth the standard in determining whether a community association can be found liable for injuries sustained by residents in a multi-family dwelling. To establish actionable negligence, a plaintiff has the burden to show the existence of a duty, a breach of the duty, and proximate causation resulting in damage. Atrium Unit Owners Ass'n v. King, 585 S.E.2d 545 (2003).The issue here is whether the policy leads residents to believe that the implementation of such measures provides additional security. Surveillance cameras often create a false sense of enhanced security as residents assume that there is a deterrent effect on criminal activity and/or active monitoring. As such, failing to clearly notify residents that such policies and measures are not intended to provide security can expose community associations to liability.
II. Audio, Video or Both and Privacy Concerns
Security cameras that record both visual and audio footage may subject the Association to additional liability. Community associations may utilize video surveillance of common areas as it is unlikely that there is a reasonable expectation of privacy within common areas that cannot be enclosed for the exclusive, or private, use of any individual. What this means is that an owner has a reasonable expectation of privacy in their home, but that expectation diminishes considerably once they’ve exited their front door. In Sanders v. Commonwealth, the Virginia Court of Appeals held that the Fourth Amendment rights of a motel guest are equal to those of the rightful occupants of a home, but the walkway immediately outside the hotel room is not afforded the same protection as the hotel room itself due to the fact that “walkways (ie, hallways) are necessary common areas used by anyone on premises to gain access to rooms.” Sanders v. Commonwealth, 64 Va. App. 734, 772 S.E.2d 15 (2015).
Audio recordings are, however, subject to the state wiretapping statute. Virginia Code Section 19.2-61 protects oral conversations where the speaker has an expectation that such communication is not subject to interception. Code Section 19.2-62 requires the consent of one of the parties in order to intercept an oral communication. The Code covers oral communications when the speakers have an "expectation that such communication is not subject to interception under circumstances justifying such expectations." Virginia Code § 19.2-61. However, unlike visual surveillance, there is some debate as to whether there is a justified expectation of privacy as to conversations within common areas. See Belmer v. Commonwealth, 553 S.E.2d 123 (2001). Restricting surveillance to video monitoring (without audio) greatly reduces the Association’s risk of breaching the state’s wiretapping statute. Should a community association decide to install audio surveillance, it will need to ensure that owners are informed of such recording and that audio recordings are not provided in response to any requests for surveillance records.
III. Access to Surveillance Records and the Association’s Rights/Responsibilities
Most Governing Documents require that the Board of Directors maintain the books and records of the association. However, due to the likelihood that such records are subject to one of the specific exceptions under either the Virginia Condominium Act or the Virginia Property Owners Association Act, surveillance records are generally not considered books and records available for inspection. Records concerning the disclosure of information in violation of law, records concerning matters involving state or local administrative proceedings for enforcement of the association documents or rules and regulations, and records concerning pending or probable litigation are exempt from inspection as records of the association. Surveillance recordings may include matters within the scope of the aforementioned referenced exceptions. For that reason, and to reduce the association’s exposure to liability arising from the release or distribution of its audio or visual recordings, requests to review surveillance recordings should be reviewed by the Board Directors pursuant to an association policy regarding the same.
Finally, community associations are generally not subject to disclosure per the Virginia Freedom of Information Act (Chapter 37, Title 2.2) because they are not public entities and therefore surveillance records are not public records.
We recommend that community associations adopt a resolution stating the purpose, scope, and limitations of any audio or video surveillance monitoring systems utilized. The resolution should specify what recordings will be retained and for how long, when owner inspection is authorized, how to request a copy of the recordings, and that the association may, but is not obligated to, provide such recordings to appropriate law enforcement officials or such other individuals as designated by the Board of Directors. Residents/owners should be provided a copy of the resolution and signs should be installed in each of the locations where such surveillance will be used. These measures will help to protect associations from liability concerns associated with undertaking additional security measures in their communities.
If you or your community association have questions about security issues, contact legal counsel at Whiteford, Taylor & Preston, LLP.