A shocking, criminal incident in Florida recently garnered national media attention when a unit owner was arrested and charged with injecting a poisonous chemical into a neighboring unit on several occasions. The liquid tested positive for the narcotics methadone and hydrocodone and caused the victim’s family members to suffer shortness of breath and eye and skin irritation. The defendant was charged with one count of felony aggravated stalking, counts of battery based on disbursement of a chemical agent, and one count of possession of a controlled substance.
Because of the significant health, safety, and wellness concerns, the condominium association filed a complaint for emergency injunctive relief, claiming that the unit owner breached the association’s restrictive covenants by causing serious life and safety concerns and by intentional compromising the air quality of condominium property and common elements, with wanton and willful disregard for human rights and safety.
The association successfully resolved its action for emergency injunctive relief, which leads to the question, if criminal activity takes place on-site, what legal remedies may be available to community associations or multifamily property owners and managers when criminal conduct is committed?
Protecting the Safety, Health, and Well-Being of Residents
Community associations are private organizations that oversee the operation, management, and administration of residential (and sometimes business) communities. Associations and the owners within are subject to governing documents and CC&Rs (covenants, conditions, and restrictions), which are contractual documents that provide legal rights, responsibilities, and obligations for owners and the properties subject thereto.
The CC&Rs typically provide that the association is to promote the recreation, health, safety, and welfare of its residents. The association, through its board of directors, has a fiduciary duty to act in the best interest of the community as a whole. Therefore, when egregious conduct that threatens those responsibilities and the wellbeing of the community is committed on community property, it is important for associations to be proactive and take immediate, legal action, where appropriate.
While Florida Courts have determined that neither the board of directors nor its manager are under any legal obligation to police each and every action involving an owner or occupant, which may be reported to the association, associations do have available civil remedies for actions that jeopardize the safety and welfare of its residents.
When warranted, the filing of a civil action for breach of contract communicates to residents that the association will not tolerate harmful conduct, that it takes dangerous behavior seriously, and that it will take action within its power to proactively protect residents.
There are varieties of considerations that come into play pertaining to available remedies regarding enforcement actions and situations where injunctive relief is warranted and justified. Therefore, it is very important for associations to consult with legal counsel regarding recommended course of action for nefarious behavior.
Further, emergency relief should be reserved for reprehensible, dangerous, and high-risk actions that would severely compromise the imminent well-being and safety of residents.
Document, Document, Document
Documentation is critical in enforcement situations. With technological advances, many communities have implemented video surveillance, which can assist in providing relevant evidence of compromising behavior and conduct; however, privacy concerns often need to be addressed and considered. Normally, people have a reasonable expectation of privacy where they would reasonably expect not to be the subject of a recording, even when that recording is taken in a public, or semipublic place.
In common areas of a community association, residents may not have a reasonable expectation of privacy; however, there are matters to consider before utilizing video recording equipment within common elements or common areas:
- The installation of a security camera on condominium common elements is considered a material alteration or substantial addition to the common elements, unless surveillance was already in existence. Therefore, a condominium association should obtain requisite member approval to make an alteration to the common elements before the installation of surveillance equipment.
- A homeowners association should review its governing documents to determine if member approval is required in order to make an alteration to the common areas before the installation of surveillance or whether the board may take action without membership approval.
- If it is determined that an association is providing security, the association could also be held liable in negligence for failure to provide adequate security or adequately maintain security equipment, in order to protect an owner or resident from “reasonably foreseeable criminal conduct of third parties.”
- Is there signage to advise residents and guests that common elements or common areas are under surveillance? If video surveillance is installed on private premises, it should be clear to anyone and everyone that recording is in process (See Section 810.145 Florida Statutes).
- Has the association passed a rule or policy regarding how recordings are taken, stored, and may be used by the corporation?
It is imperative that associations take the time and the initiative to evaluate surveillance capabilities, enforcement remedies and community needs to protect their residents.
Florida Adopts Laws Incentivizing Multifamily Property Security Upgrades
Recently, Florida adopted laws that could provide limitations on premises liability for multifamily residential properties and potentially favorable insurance reductions for taking proactive security enhancement action, relating to crime prevention.
“The owner or principal operator of a multifamily residential property which substantially implements the following security measures on that property has a presumption against liability in connection with criminal acts that occur on the premises which are committed by third parties who are not employees or agents of the owner or operator. Such assessment must be performed by a law enforcement agency or a Florida Crime Prevention Through Environmental Design Practitioner designated by the Florida Crime Prevention Training Institute of the Department of Legal Affairs.”
Multifamily residential properties include residential buildings, such as apartments, townhouses, or condominiums, consisting of at least five dwelling units on a particular parcel; however, the term “parcel” requires a distinct parcel identification number assigned by the property appraiser.
Therefore, if there is no parcel identification number for the condominium association, protections provided for in the statute may not apply. Therefore, if any condominium association is considering implementing the following security measures in order to take advantage of this new law, the association would need to first confirm applicability of the statute to its properties.
All of the security measures are listed in the statute, but for the most part, these enhancements include crime and safety training for employees; security cameras at entry points that keep video for 30 days; lighted parking from dusk to dawn; lighting in common areas from dusk to dawn; deadbolts; window locking devices; locked gates at pool areas with fob or key access.
Notwithstanding the above, recommended security implementations by associations may not only further protect residents, but may also lower insurance premium rates. Furthermore, associations could be held liable for negligence, if they fail to take reasonable steps to prevent crime on property and properly maintain existing security measures. As a result, associations may want to periodically take account of its community needs and consider the implementation and incorporation of crime prevention strategies.
The legal remedies available to associations when egregious or potentially criminal conduct is committed vary depending on the specific circumstances.
The first step when witnessing or becoming aware of a crime is to immediately report the crime to the police and appropriate authorities. Then, the association may wish to consult with its legal counsel to discuss the immediate options and to determine if additional causes of action are justified, needed or available.
Even if there is criminal or disruptive activity in a community and the individual victim has criminal remedies, the association, community, or governing entity may also have separate and distinct civil remedies that could protect and benefit the community.
Appropriate and knowledgeable legal representation can walk all parties through the process and help determine which remedies can be pursued.