By
Jeffrey A. Barnett, Esq.
Copyright 1999
Introduction
At the monthly board meeting members come forward with the following reports: There is a "peeping tom" living in the community; An exhibitionist is displaying his "charms" in the subdivision; a member may have Alzheimer's disease and parades unclothed through the subdivision at night; a known mentally disordered sex offender ("MDSO") moved into the complex; a member is "hostile and aggressive", and makes death threats against his neighbor. Now what do you do?
These questions, drawn from real cases, present extremely difficult legal questions for the board of the homeowners association. Does the board have a duty to take action? Are there legal limitations that constrain action of the board? Let's look at the guidance provided by California and federal law.
Duties of Investigation and Care
The California Supreme Court has ruled that a homeowners association has a duty to exercise due care for the safety of residents in those areas under the association's control. See Frances T. v. Village Green Owners Assn., 42 Cal 3d. 490 (1986). The board can be liable for failure to take reasonable steps to prevent injuries from foreseeable criminal activity. The foreseeability of criminal activity is determined in light of all of the circumstances, and not by a rigid application of a mechanical "prior similars" rule. Isaac's v. Huntington Memorial Hospital, 38 Cal 3d. 112 (1985). However, in the recent case of Ann M. v. Pacific Plaza Shopping Center, 6 Cal 4th 666 (1993), the California Supreme Court held that a high degree of foreseeability is required in order to find that the scope of a property owner's duty of care includes adequate measures to prevent harm from criminal activity. But the Ann M. Court further held that landowners must maintain their land in a reasonably safe condition, and must take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such cautionary measures.
The California courts have not found an easy standard to apply under the circumstances, because although landowners have the ability to reasonably control their own property, criminal acts are inherently unpredictable.
In Isaac's v. Huntington Memorial Hospital, the California Supreme Court stated that the owner's duty to provide protection from foreseeable third party crime has always been determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed, and specifically held that this duty is determined by the balancing of foreseeability of the criminal acts against the burden and efficacy of proposed security measures. The Court concluded that "high degree of foreseeability is required in order to find that the scope of the owner's duty of care includes the hiring of security guards and that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's property."
Most recently in Phillips v. Perils of Pauline Food Production, Inc., 35 Cal.App. 4th 1510 (1995), the California Court of Appeal held 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.
Fair Housing Duty of Accommodation
The Fair Housing Amendments Act 42 U.S.C. Section 3601, et seq. has direct application to these issues. The Fair Housing Amendments Act ("Act") makes it illegal to discriminate against any person in providing services or facilities in connection with a dwelling. 42 U.S.C. Section 3604. The Act defines discrimination as including the "refusal to make reasonable accommodations in rules, policies, practices and services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. Section 3604(f)(3)(B). In short, federal requires the Board to "bend the rules" for the benefit of disabled persons, so that they may use and enjoy their housing facilities. Mental illness or emotional disturbance as well as physical disability qualifies a resident for protection under the Act.
Unfortunately, the term "reasonable accommodations" is not defined by the Fair Housing Amendments Act, and case law discussing the application of this statute provides little guidance to the homeowners association. In Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334-335 (2nd Cir. 1995), the Second Circuit Court of Appeals held that a cooperative housing complex could be required to incur reasonable costs to accommodate a handicapped owner, provided the accommodation did not impose an undue hardship or "substantial burden". In that case, the Association was required to provide a convenient ground floor parking space for an owner afflicted by multiple sclerosis. The Court expressly noted that the extent to which a "reasonable accommodation" for a handicapped individual can burden or take away rights or privileges enjoyed by the non-handicapped persons is an undecided question. Ibid at p. 336. However, few would argue that the duty of the association to accommodate the disabled requires tolerating criminal behavior or conduct that is a safety threat to others. More difficult to know is the degree of nuisance and annoyance that must be tolerated to meet the duty of accommodation under the Act. Penalties for violation of the Fair Housing Amendments Act may be up to $50,000 for a first violation and up to $100,000 for any subsequent violations as well as attorney's fees and costs incurred by the plaintiff.
Voyeurism (our "peeping tom"), exhibitionism (the neighborhood "flasher"), dementia of the Alzheimer type and pedophilia (the "MDSO") all are psychiatric abnormalities which are recognized by the American Psychiatric Association and are clinically described in the Diagnostic and Statistical Manual of Mental Disorders (DSM, 4th Edition, 1994). Alcoholism might explain the hostile, aggressive and threatening behavior of the neighbor. Obviously exhibitionism, voyeurism and pedophilia when acted out in society are violative of California criminal laws, including California Penal Code Sections 311 and following and Penal Code Section 647. However, aberrant behavior in homeowners associations requires consideration of the civil law responsibilities of directors. The problems cannot be compartmentalized as only matters for the police, since the homeowners association and its board members can be sued for personal injury or wrongful death damages if the common area is not kept reasonably safe or the CC&R covenants are not enforced.
Business Judgment Rule
The board must exercise its business judgment concerning whether the past criminal acts of the individual or aberrant behavior are likely to create a threat to security on the common area in the future. If inquiry and deliberation lead to the conclusion that there is such a threat, it is appropriate that the board take commensurate actions to assure security in the common area. On the other hand, if there is no reason, in the board's judgment, to believe that an individual presents harm to others, then the law does not require the board to implement additional security measures for the common area. In exercising business judgment, the board may rely on the advice of individuals with particular knowledge and skill in the area, such as security consultants. Under Corporations Code Section 7231, directors who use qualified consultants secure the benefits of the "safe harbor" rule relating to your standard of care. Relying on such third party advice provides additional protection for the board of directors against liability for breach of the duty of care to the corporation. Clarification of the director's standard of care and duties to owners is expected in the case of Lamden v. La Jolla Shores Clubdominium Homeowners Association 62 Cal.App. 4th 1145 (1998), review granted 98 CDOS 5594 (1998) presently before the California Supreme Court.
Our Questions Revisited
While voyeurism and exhibitionism may seem to be acts strictly within the purview of the criminal justice system, such conduct may well trigger a duty of investigation on the part of the board, and a duty to enhance security on the common area. As noted, the Frances T. case imposes a duty of care on the part of the association and its directors to protect residents from foreseeable criminal activity. The Ann M. decision requires the association to maintain the common area in a reasonably safe condition and to take reasonable steps to secure the common area against foreseeable criminal acts of third parties that are likely to occur in the absence of such cautionary measures. Arguably acts of exhibitionism and voyeurism are not harbingers of criminal attacks on residents in the community. Yet the occurrence of this criminal behavior may suggest that conditions in the community foster criminal behavior, because of inadequate common area lighting, overgrown landscaping or lack of security. In the case of residents suffering Alzheimer's disease, alcoholism, or mental or emotional disabilities that may produce hostile conduct, considerable finesse is necessary to balance the affirmative duty of the association to provide accommodation to the disabled against the duties of the association to ensure that the common area is safe for the owners and residents and to see that the restrictions are enforced.
What of the owner who is being threatened by his neighbor? Most directors feel that the association has no legitimate business interjecting itself into private quarrels between neighbors. However, the association may well be drawn into fights between neighbors. The origin of the dispute may lie in a claimed violation of the CC&R's, such as a claimed nuisance or annoyance that is prohibited by the declaration of restrictions. The aggrieved owner may bring suit against both his neighbor and the association for failure to enforce if the association is passive. Or, common area conditions may be involved in the dispute, such as a construction defect in the floor-ceiling assembly which allows excess noise to be transmitted from the upper to the lower unit. The "private" dispute may, on closer review, involve conditions for which the association is responsible. If the aggressive neighbor presents a security threat on the common area, the association must necessarily consider taking measures to address the duty of care which has been outlined in the case law or to abate a nuisance under the CC&R's.
The "Megan's Law" disclosure information was recently expanded so that local law enforcement agencies receive updated CD-ROMs monthly, rather than quarterly. The information is categorized by community of residence and ZIP Code, including the name and known aliases of the person, photograph, physical description, gender, race, date of birth, the criminal history. A 900 number has been established for public call-in information. See Penal Code Section 290.4 as amended.
While it is wrong, in the author's view, for an association to secure and publish in a newsletter to the members the identity of any mentally disordered sex offenders who may be residents in the community, or nearby, it certainly is appropriate for the association to notify members of their right to obtain this information from the local police department. Some communities have also notified residents that there is a mentally disordered sex offender who is living in the community, without identifying the individual's name or address, to allow other residents to take appropriate precautions. Obviously this issue is highly charged, and any incorrect or misleading information could be seriously damaging to an individual's reputation, and would almost certainly lead to a defamation action against the board members and association. Extreme caution is required in these circumstances, and the Board should seek legal advice from the association's counsel before acting.
Associations have found a wide range of tools helpful in addressing these extremely difficult and delicate problems raised by kooks and crooks in condos. Certainly close cooperation with law enforcement officials is appropriate. Some associations have assisted law enforcement in identifying and reporting criminal suspects, and cooperating in surveillance programs. Law enforcement can assist in securing a 72-hour psychiatric hold and evaluation under the Lanterman-Petris Short Act, California Welfare and Institutions Code Section 5150. Neighborhood watch and police crime control programs have proven effective. Some city and county agencies and departments can be helpful in crime reduction measures.
In other instances, board members and their management representatives have met with owners or their family members in a tactful, non-threatening environment, to discuss the safety and the proper care of residents who are having difficulty looking after their own needs. Skillful communications are likely to be far more successful than heavy handed enforcement procedures.
In many instances, it is very appropriate for the board of directors to secure an injunction from the superior court preventing violation of the CC&Rs by the individual. California Civil Code Section 1354(b), which generally requires that a "request for resolution" be served on the owner prior to initiating a lawsuit, allows an immediate filing for a temporary restraining order or preliminary injunction where circumstances warrant. If a compelling need is shown to the court, the association is likely to obtain a preliminary injunction compelling compliance with the CC&Rs or forbidding further violations. The order can be enforced by the contempt power of the court after the order is personally served on the defendant. Even if it is expected that compliance with the court's order is unlikely, exhausting the association's legal remedies will give substantial protection to the board of directors and association in the unfortunate event that personal injury or property damage results from criminal activities by a resident.
The challenges created by criminal activity and by persons with mental or emotional disabilities are formidable. The legal standards which the board must meet conflict and can be difficult to apply. Careful coordination between the board, the association manager and the association's legal counsel is appropriate to evaluate whether association intervention is appropriate and, if so, what options can be exercised effectively and without impairing federally protected rights of the disabled.