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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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