What is an HOA’s duty of care liability to its members and to all others?

State laws, in general, hold that the duty HOA board of directors is one of good faith, and as a fiduciary or prudent person with respect to the members, where “members” does not mean an individual member.  This is based on the nonprofit, membership corporation and HOA/condo Acts that can be found in almost every state.

But, what about tortious or wrongful acts under tort law negligence, or agency law, or real estate law on an owner liability for injuries to others on his property?  And there is also the charitable volunteer laws shielding all but grossly negligent acts by volunteers.   These laws apply although you can’t find them in your CC&Rs or in the HOA/condo statutory Acts, and the average board member probably has very little, if any, awareness of their applicability to HOAs.

I write as a lay person, because no one else is writing and the national lobbying organization is not likely to tell it like it is — nothing bad about HOAs.  Not even any of your state consumer protection agencies.  With respect to the Trayvon murder incident, I wrote about some of these HOA liability issues in, What is the HOA liability for wrongful acts by its security officers?”   Information has come forth in the media that the Retreat at Twin Lakes, the HOA, either “hired” Zimmerman or at least had knowledge, or should have had knowledge, of Zimmerman’s history.

My initial research into the question of HOA duty of care under tort law of negligent acts revealed a few court cases that shed some light on this question.  The most recent case (The Landings v. Williams, No. A10A1956, GA App. 2011) is the mauling by an alligator of an 83 year old woman on the common property of the HOA in Georgia.  The woman was visiting her family and is an “invitee” (legal term pertaining to a third-party on property held out to the public), and the appellate court denied a motion for reconsideration and upheld the HOA to have a duty of care and was negligent in this instance.

In California, several related cases have been reported by attorney Jeffrey A. Barnett in “Aberrant Behavior in Associations.”  He references the California Supreme Court holding that,

the owner’s duty to provide protection from foreseeable third party crime has always been determined in part by balancing the foresee ability of the harm against the burden of the duty to be imposed . . . . The board can be liable for failure to take reasonable steps to prevent injuries from foreseeable criminal activity.  (Isaac’s v. Huntington Memorial Hospital,38 Cal 30 112 (1985)).

The Court further held (Frances T. v. Village Green Owners Assn., 42 Cal 3d. 490 (1986), “that a homeowners association has a duty to exercise due care for the safety of residents in those areas under the association’s control.”  And that,

the property owner’s duty includes exercising reasonable care to discover whether criminal acts are being, or are likely to be, committed upon the owner’s land. If an investigation would in all probability lead to the discovery of prior similar incidents to the occurrence giving rise to an injury, constructive knowledge of such incidents is imparted to the property owner, and the owner may be liable for the damage resulting from the criminal activity.  (Phillips v. Perils of Pauline Food Production, Inc., 35 Cal.App. 4th 1510 (1995).

The HOA board cannot be allowed to justify negligence of this magnitude in the Trayvon slaying by claiming that they are just poor unpaid volunteers working for the community.  No!  HOA boards must be held accountable like all other government officials and entities.  Our public officials and entities are not given absolute immunity, and neither should that be given to HOA boards.

Published in: on March 21, 2012 at 7:41 am  Comments (6)  
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6 CommentsLeave a comment

  1. […] indicated in the media and earlier (What is an HOA’s duty of care liability to its members and to all others?), the HOA could be sued under a number of legalities as determined by the facts.  It is important […]

  2. […] informed homeowners of the areas of potential liability by HOAs and the impact on the membership in What is an HOA’s duty of care liability to its members and to all others? However, the position by Mr. Crump not to pursue the HOA lawsuit at this time is understandable. […]

  3. Thank you, thank you, for bringing your insight into what I and others are considering an abyss of a quasi gov. gone wrong and allowed to function with no State oversight.

  4. According to newsfeed.time.com today, “Martin was in the gated community with his father as they visited the home of family friends.” Neither he nor his family were members of the HOA, and were either an “invitee” on common property, or a “licensee” — “social guest” of a member.

    Assuming the slaying took place on an HOA common area, Tayvon would be considered an “invitee” like the woman in the Georgia alligator case who was visiting her family.

    Neighbor Frank Taafe said that, “Taaffe said that Zimmerman was appointed as a watch captain, despite reports that he appointed himself to the post,” according to a US News on MSNBC interview. “Neighbor comes to defense of Trayvon Martin’s shooter,”

  5. The “cover up” is in. MSNBC this morning speaks of Zimmerman as just a “self-appointed watchman,” giving the impression that the HOA had nothing to do with it. Watch. You will see “mum’s the word,” if the media does dare ask the HOA about their role in using Zimmerman — their lawyers are at work.

  6. Lets hope a court of law crucifies the HOA and its board for their incompetent and deadly mistake.

    Board members should be held personally liable in these situations, they should lose everything….something that happens all the time to homeowners at the whim of capricious boards.

    Until the folks who collaborate with the trade association of lawyers and prop. managers (CAI), and sell out their neighbors for the kind of flower they plant in their yard… start to experience the same pain and fear common to their homeowner victoms…..nothing is going to change.

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