Are HOAs Liable for Crime and Security Problems?
Can HOA Board Members Be Sued for Criminal Acts on the Property? A Guide for Texas Board Members
This article is for informative purposes only; it is not intended to constitute legal advice. Readers of this website should contact their attorney for counsel regarding any particular legal matter.
Contents
Why It’s Important
Key Concepts
Landlord and HOA Liability for Injuries From Criminal Activity
Determining Foreseeability
Determining Unreasonable Risk
Types of Plaintiffs
Proximate Cause and HOA Injury Cases
Negligent Security
Foreseeability Without Reasonableness: The Timberwalk Case
What Gets Individual Board Members Sued?
Insurance Considerations for Condo and HOA Board Members
What to Do Now
Why It’s Important
Alan Petrie arrived at The Gallery apartment complex at about two o'clock one morning to attend a party hosted by a coworker.
He parked in a visitor lot at the front of the complex. Although the complex was gated, the visitor parking lot, which spanned most of the property's street frontage, was outside the gate and accessible to the public. While Petrie made a phone call from his car, a vehicle pulled up behind his, blocking him in.
Two men exited the vehicle and approached Petrie's car. One pointed a shotgun at Petrie through his window and ordered him to exit the car.
Petrie complied and, when requested, surrendered his wallet and keys. But when ordered to lie down, he hesitated.
So one of the men shot him in the knee and he fell to the ground. The shooter then placed the shotgun barrel to Petrie's head and pulled the trigger, but the weapon did not fire. Petrie quickly crawled under the vehicle next to him while the assailants fled.
Petrie survived the assault. Later, he sued the apartment complex, claiming that the landlord knew or should have known about criminal activity in the vicinity and on the property itself.
Is the apartment complex liable?
In similar cases would a condominium or homeowners association be held liable for a tenant or visitors’ injury or death due to criminal activity on the property? Under what circumstances? Could this liability be extended not just to the HOA or condominium board itself, but to individual board members, as well?
This article will explore these questions – particularly as regards the state of Texas.
Why It’s Important
While Texans are famous nationwide for taking positive steps to defend themselves against criminal aggressors, violent crimes are still all too common in the Lone Star State.
As of 2021, Texas led the nation in both the number of murders (nearly 2,000) and the number of violent crimes over all. In total, Texas residents reported some 115,000 violent crimes that year.
That ranks Texas as the 11th most dangerous state in the country, with just over 391 crimes per 100,000 people, according to FBI data.
Key Concepts
Board members, insurance professionals, and attorneys representing litigants in this space should understand these key concepts, which we’ll explore in depth in this article:
duty of care
reasonableness
foreseeability
negligence, including negligent security
actual knowledge
constructive knowledge
proximate cause
invitees
licensees
trespassers
It’s important to understand these terms because these are the key concepts around which HOA and condo board injury liability cases are decided.
Landlord and HOA Liability for Injuries From Criminal Activity
In Texas, the general rule is this: Condo and HOA boards normally have no duty to protect tenants, residents, guests, or trespassers against criminal activity (1).
Similarly, landlords have no duty to prevent criminal acts of third parties who are not under the landowner's supervision or control (2).
With regard to criminal acts of third parties, property owners in Texas owe a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable (3).
But if the Board knows or should have known of a threat, given ordinary diligence and competence, the situation changes: That knowledge triggers a duty to take reasonable measures and use ordinary care to make the areas they control safe from foreseeable criminal threats and other hazards (4).
So yes, if someone is harmed by criminal activity on your property, the Association and the members of the Board of Directors could get sued for damages (5).
But for the plaintiff attorney to prevail, they have an uphill battle in front of them. Under Texas law, the plaintiff will have to show four things:
1. The criminal act happened in an area that you control
2. The criminal threat was unreasonable
3. The crime was foreseeable - Your board knew or should have known about the threat.
4. The Board was negligent in not taking action.
If the plaintiff fails on any one of these points, the HOA or landlord will likely win the case.
This means that homeowner association (HOA) and condo boards can potentially be held liable for injuries that occur on the HOA or condominium property under certain circumstances.
Determining Foreseeability
When it comes to crime on HOA property, HOAs can be found liable for damages if the plaintiff can show that the HOA board either knew of the danger of criminal activity – or should have known of the danger, given ordinary care and common sense – and that they were negligent in taking steps to prevent harm.
What would make a criminal act foreseeable? There’s no single answer. In Texas, the courts will consider a number of factors, including:
The proximity of prior crimes to the property
The recency of prior crimes
The frequency of prior crimes
The similarity of prior crimes to the criminal conduct in question
The publicity surrounding prior crimes
For example: Suppose there had been a sustained pattern of robberies and muggings within a few blocks of the property over the past six months. They all seem to happen at night, and with similar modus operandi. These crimes are happening at a higher rate in your area than they are in other areas of the city. There are public records of police reports, and the crimes have been reported in local media.
Crimes are more likely to be deemed foreseeable by the courts if there hass been a pattern of numerous similar crimes in the area within a short period of time. For example, in Mellon Mortgage Co. v. Holder, the Texas Supreme Court held that a rape was foreseeable when it took place in an area that had witnessed 190 violent crimes in the space of two years, or one violent crime every four days.
All these factors support the argument that a similar crime occurring on your development was foreseeable. And that triggers a duty to take all reasonable steps to prevent it.
In some cases, even a single prior crime can be enough to establish foreseeability if it was a particularly serious crime or if it was followed by a pattern of similar crimes. For example, a single rape in a neighborhood that has not experienced other violent crimes may not be enough to establish foreseeability. However, if the rape is followed by a series of other violent crimes, the court may find that the owner or manager should have been aware of the risk and taken steps to prevent further crimes.
Additionally, foreseeability is construed broadly. According to the Texas Supreme Court, “foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” (6)
That means you can’t act like an ostrich, sticking your head in the sand to hide from the danger, and hope your policy of deliberate ignorance will protect you from liability. HOA and condo boards have a fiduciary responsibility to stay abreast of crime statistics and criminal acts in and around the property.
When it comes to a lawsuit, your response to the criminal activity is a critical factor: If you fail to act on that knowledge, the Board may be exposed to liability.
Determining Unreasonable Risk
The Texas Supreme Court ruled that a risk is unreasonable “when the risk of a foreseeable crime outweighs the burden placed on property owners—and society at large—to prevent the risk.” (7)
This is where the courts balance the potential risk of criminal activity to owners, residents, guests, and others in the community against the potential burden on landlords and associations of actually implementing the most desirable security measures.
Perfect security does not exist. And the courts do not intend for landlords or associations to bankrupt themselves trying to take every possible security measure against all levels of threats.
However, where a risk is foreseeable, you do have an obligation to take measures to protect invitees and licensees against the most severe risks. For example, you have a greater duty to take steps to protect your residents against foreseeable violent crimes like murder and rape than you do to prevent routine car break-ins or vandalism.
Types of Plaintiffs
In HOA injury liability litigation, there are three types of potential claimants: Invitees, licensees, and trespassers. The specific duties the Board has toward any individual claimant depends on their relationship with the HOA or condo association.
Invitees
Invitees are people who have a legal right to be on the property - such as owners and association members. In general, invitees are paying the Association for the right to be on the property, by virtue of ownership or by paying HOA dues.
Of all potential claimants, your association owes the highest duty of care to your invitees.
Licensees
Licensees are those who’ve been granted a general privilege to be on the property, but who are not owners, association members, or residents, nor otherwise paying customers.
These people have a privilege to be on a property, but not a right.
Examples of licensees on a property include social guests of residents, vendors fixing the plumbing or picking up garbage, or contractors on the property at the invitation of the Association itself, or one of its invitees.
Licensees hold a lower status than invitees, and therefore the HOA has a lesser duty of care towards them.
But the HOA is still generally responsible to take reasonable measures to keep invitees safe from harm from foreseeable hazards, including violent crime.
Trespassers
Everyone on the property without status as an invitee or a licensee is a trespasser.
They aren’t necessarily trespassers in the criminal sense. It’s not necessary for an individual to be violating a formal writ of trespass to be a trespasser. It could simply be someone taking a shortcut through the property to get to the park on the other side, a resident’s invited guest who wanders off, or someone considering leasing a dwelling hanging out in the parking lot to get a sense of criminal activity there at night.
At any rate, the trespasser has the lowest status of these three categories. Generally, the HOA has no duty of care towards trespassers, other than to avoid gross negligence, and to make allowances for children.
If an invitee brings a lawsuit against the HOA, it may be a very serious threat. Since the HOA has a high duty of care towards invitees, they have a relatively low hurdle to clear in court to demonstrate that the HOA and its board should be liable for injuries.
On the other hand, a trespasser bringing a suit against an HOA for injuries resulting from criminal activities on the property has a very high burden.
Similarly, an invitee who files suit against individual board members in addition to the Association as a whole has a much greater chance of showing that a duty existed to protect them from harm from criminals, compared to invitees.
Proximate Cause and HOA Injury Cases
When an HOA is sued for compensation due to harm sustained in a criminal attack on the property, the jury will take a close look at proximate cause.
In the HOA law context, proximate cause refers to the specific link, or nexus, between the HOAs’ negligence and the plaintiff’s injury.
For the plaintiff to prevail in a suit against the HOA in Texas, they have a double burden:
1. They must show that the HOA was, in fact, negligent.
2. Second, they must show that the HOA’s negligence contributed directly to the plaintiff’s injury.
Note that the contribution must be direct. If there are one or more intervening causes between the HOA’s negligent act or failure to act, the plaintiff will have a very tough time prevailing in any lawsuit.
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“HOAs may be held liable for criminal activity on their property if they knew or should have known about the criminal activity and failed to take reasonable steps to prevent it.”
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If an HOA receives reports of criminal activity in the area, they should quickly take steps to increase security, such as installing security cameras and lighting. They should also provide residents with information about how to stay safe. If an HOA fails to take these steps and a crime occurs, they may be liable for the victim's injuries.
Negligent Security
While HOA boards and their members have strong protections in place if they are diligent, competent, and professional, juries and judges can still hold associations liable under the theory of negligent security.
For this to happen, the plaintiff would have to show that 1.) The property owner’s association or landlord had a duty to protect invitees, 2.) that they failed to do so due to negligence, and 3.) that negligence made the criminal act possible, 4.) causing damages to the plaintiff.
What is Negligence?
In Texas, “negligence means the failure to use ordinary care—failing to do what a reasonable person like the defendant would have done under the same or similar circumstances—to protect against unreasonable risk of harm.” (8)
Examples of Negligent Security
Examples of circumstances that would support a negligent security claim include:
Security gates that do not lock
Broken light bulbs
Holes in fences and gates
Emergency call boxes that don’t work
Overgrown bushes and shrubs
Broken or inadequate security cameras|
Insufficient security presence
Sleeping security guards
Lack of a written security policy
Foreseeability Without Reasonableness: The Timberwalk Case
The Texas Supreme Court laid out a negligent security standard for landlords and master leaseholders in Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998).
In the Timberwalk case, the plaintiff, Tammy Rene Cain, was raped in her apartment at about 3AM one morning. The rapist, Peter Saenz, was convicted of that sexual assault, as well as several others, so there was no doubt that the incident occurred, and that she suffered harm as a result.
The claim was centered on the assertion that the apartment complex had a duty to provide adequate security measures to protect its tenants, but failed to do so.
Cain filed suit against Timberwalk Apartments Partners and their parent company, alleging that they negligently failed to provide adequate security, including “charley” bars or pin locks for sliding glass doors, alarm systems in the apartments, access gates to the complex, proper lighting, routine surveillance, and guards.
Cain’s apartment had an alarm system, but it was not working at the time of the assault. A nearby access gate did not work.
There was no known pattern of similar assaults in the apartment complex at the time, which turned out to be a critical factor in the case. The only serious crimes that had ever been reported to law enforcement from Timberwalk Apartments before the incident were a car theft and a car burglary.
In fact, the area around Timberwalk and Timberwalk itself had a lower per capita violent crime rate than the Houston area, and only slightly higher rates than Texas as a whole. Timberwalk argued that it had no duty of care as Cain alleged because the attack was “unforeseeable. “
A jury rejected Cain’s claim that the apartment complex was negligent in providing adequate security, and actually found that the proximate cause for her rape was her own negligence.
Generally, an individual who is assaulted in his or her apartment, or even in the common areas of the property would have an uphill battle winning a court case in Texas against an HOA – unless the plaintiff is able to show that the HOA was negligent, and that this negligence led to the specific assault in question.
In the Timberwalk case, however, Cain’s attorneys didn’t show evidence that the HOA was negligent.
What Gets Individual Board Members Sued?
Fortunately, for HOA board of directors members and volunteers, the State of Texas provides a lot of protection for actions taken in the course of their duties.
Specifically, the Texas Charitable Immunity and Liability Act of 1987 grants broad immunity from civil liability for volunteers serving as officers, directors or trustees of HOAs and condo associations.
As long as you are acting within the course and scope of your duties and functions within the bylaws of your association, Texas law grants you immunity from lawsuits for death, damage, or injury resulting from your actions.
Nevertheless, it’s not uncommon for plaintiffs’ attorneys to name individual board members as defendants, in addition to the HOA as a separate entity.
In practice, however, judges usually toss the actions against individual board members, and instead focus the case on the potential liability of the Board as whole. Board members are usually only held liable by the courts if they violated their fiduciary duty to the Association.
What kinds of things get board members successfully sued as individuals? Here are a few examples:
Failure to provide oversight
Misuse of HOA funds
Self-dealing
Conflicts of interest
For example, if you’re an HOA Board member. The board hires your brother in law’s company to install security gates on the property. Your brother-in-law pays you a “referral fee.” The security gates fail, and someone is injured on the property as a result.
You could be sued as an individual for violating your fiduciary duty to avoid self-dealing and conflicts of interest. Even if you’ve done nothing wrong, you could face significant costs merely defending yourself against these claims.
That’s why owning a solid directors and officers liability insurance policy is a critical item for all such boards, and for each board member as well.
Personal Liability Insurance Considerations for Condo and HOA Board Members
Generally speaking, individual board members are only subject to liability if they themselves breach their own fiduciary duty to the board. So as long as you are faithfully and diligently carrying out your duties as a board member, you shouldn’t have any liability exposure. But that doesn’t mean you won’t have to defend yourself against accusations of a breach of fiduciary duty.
To protect yourself against the risk of lawsuits against you, personally, you should maintain multiple layers of liability insurance protection.
1. Homeowner’s Insurance
Your homeowner’s insurance policy should provide some general liability insurance to protect you, personally. Check your policy documents to find your policy limits and exclusions.
Important: Homeowner’s insurance liability protection will help protect you against the risk of liability for your own actions as an individual. Coverage generally does not extend to your official actions as an HOA or condo board member.
2. HOA Liability Insurance
Your HOA or condo board should maintain a liability insurance policy of its own.
This policy will cover the HOA itself, as well as protect individual Board members who are acting within the scope of their duties and responsibilities as Board members.
3. Directors and Officers Insurance
Directors and officers insurance functions like medical malpractice insurance for doctors and like errors and omissions insurance for real estate and financial professionals.
Not all D&O insurance policies are created equal. Unlike homeowner’s insurance, D&O policies are not standardized. Policies vary widely when it comes to the actual protection the insurance provides. As usual with insurance protection, you get what you pay for. You should not shop based on premium alone, but look carefully at the entire policy.
A good D&O policy won’t just protect individual board members, but also protect their spouses and other family members, HOA staff members/employees, and even people doing volunteer work in the association.
Good D&O insurance policies, like other professional liability insurance, should also include language specifying the insurance carrier’s “duty to defend.”
That means the insurance carrier is obligated not only to help you cover any judgements or settlements arising from covered claims, but also help you pay the cost of your defense, as well.
Board members should be very wary of serving on boards that do not maintain both HOA liability and D&O coverage, at a minimum.
4. Umbrella (Excess Liability) Insurance
Excess liability insurance, also known as umbrella insurance, is a type of liability insurance that provides coverage for claims that exceed the limits of your other liability insurance policies.
For example, if your D&O liability insurance maxes out at $1 million, but you get hit with a $2 million judgment, your excess liability insurance coverage steps in to pick up the rest – up to the limits of the policy.
Umbrella insurance typically provides coverage for a wide range of liability risks, including:
Bodily injury liability
Property damage liability
Personal injury liability
Professional liability
Directors and officers liability
Umbrella insurance can also help you cover the cost of defending yourself against a lawsuit, including legal fees and court costs.
The amount of coverage that an umbrella insurance policy provides will vary depending on the policy limits and the specific terms of the policy. However, most umbrella insurance policies provide coverage in excess of $1 million.
Because umbrella coverage only kicks in after all your other types of liability insurance are exhausted, you can buy a very large amount of protection for a very reasonable premium.
$2 million to $5 million is a common limit for individual umbrella insurance policies. People with a lot to lose should consider adding even more protection than that.
Back to the Petrie Case
That brings us back to the case in the introduction, and the man who was shot in the leg during the course of a robbery in the parking lot of an apartment complex.
In that case, the courts ultimately sided with the landlord.
Obviously, the victim suffered harm in this case. But the Texas Supreme Court ultimately ruled that the plaintiff brought evidence that the criminal activity in the area was foreseeable, he failed to show evidence that the risk of harm was unreasonable.
Petrie’s attorneys had been relying on a series of five tests from the earlier Timberwalk case. That was the obvious precedent at the time. But Timberwalk’s counsel argued that those tests only addressed foreseeability, not the unreasonableness of the risk.
But the Texas Supreme Court ruled that that foreseeability alone was not enough to trigger a duty of care, but that plaintiffs needed to prove both foreseeability and unreasonable risk of harm.
They are separate elements, and both elements must be satisfied to show that the landlord had a duty of care to Petrie, who as a guest to a party hosted by a resident, was a licensee.
Petrie’s counsel erred in relying entirely upon the foreseeability question, and failing to bring evidence in support of the unreasonable risk question. The Texas Supreme Court overruled the Appeals Court decision for Petrie, saying that relying on Timberwalk was improper, because Timberwalk – and the Court of Appeals – didn’t address unreasonable risk at all.
The Petrie decision made it more difficult for plaintiffs to recover damages from third-party criminal activity.
But not impossible.
Had the Texas Supreme Court not granted cert to Timberwalk’s appeal, Petrie would have prevailed.
Furthermore, had Petrie’s legal team anticipated the reasonableness question, they may have been prepared with evidence to address it, rather than rely entirely on foreseeability. Had they done so, the case may well have gone the other way – and the property would be facing significant potential liability.
To protect the Association as a whole, the board of directors, and each individual board member, you should take your fiduciary responsibilities toward your owners, members, residents, and tenants seriously, every step of the way.
Ultimately, that’s the best way to reduce the risk of liability.
More importantly, that’s the best way to keep your residents, their guests, and your employees and vendors safe.
What to Do Now
Be proactive. Take action to identify and address security faults and shortcomings… before tragedy occurs. Have a system in place for identifying issues and tracking progress on correcting them. And document what you and the rest of the board have done.
Remember, if a resident, tenant, visitor, or any other innocent party is harmed because of criminal activity on the property your HOA controls, a skilled plaintiff’s attorney is going to ask some very pointy questions:
“When was the last time you did a formal security site inspection and assessment on the property?”
“If you did, what were the findings? What actions did you take to correct any deficiencies?”
“Did you do it yourself? Or did you bring in an experienced security expert?”
“If you didn’t bring in an expert, why not?”
“What is your visitor policy?”
“What is your written schedule for testing all security gates?”
“When was the last documented time you inspected your security cameras?”
There are a number of common preventive measures that HOAs and condo boards can take to reduce the likelihood of criminal activity occurring on their properties. These include:
1. Schedule a formal HOA Security Assessment.
An HOA security assessment is a comprehensive review of the security measures in place at a homeowners association. The assessment typically includes an evaluation of the physical security of the property, as well as the security policies and procedures that are in place.
The goal of an HOA security assessment is to identify any potential security vulnerabilities and to recommend improvements. It’s important to bring in experts. Don’t leave it to amateurs. Property managers are rarely experts in security. If a plaintiff’s attorney ever asks who did the most recent security assessment, credibility will be important.
There are a number of things that can be included in an HOA security assessment. Some of the most common elements include:
A review of the physical security of the property, including the perimeter fencing, gates, lighting, and access control.
An assessment of the security of the common areas, such as parking lots, playgrounds, and clubhouses.
A review of the security of the individual homes, including the doors, windows, and security systems.
An evaluation of the security policies and procedures that are in place, such as the visitor policy, the reporting of suspicious activity, and the emergency response plan.
2. Care for the property - and make it obvious.
Criminals are attracted to properties that appear neglected. Litter, trash, graffiti, poor lighting, unkempt landscaping all drive down property values, and signal to criminals that management is dropping the ball.
Don’t be an obvious target for criminals.
Lighting, in particular, is a critical issue. Eliminate shrubbery and other concealment that criminals can use to screen their movements to approach dwellings or stalk residents.
3. Appoint a Safety and Security Committee
This group of board members and volunteers should focus specifically on security issues and risk management, with a view towards both keeping community members safe as well as mitigating or preventing liability.
Their function is to serve as an advisor to the Board of Directors, and ensure that all issues are brought to your attention, along with concrete, actionable recommendations.
The Safety and Security Committee will also help the board alert owners and residents about security and safety measures - and document the steps taken, because each of these measures is a potential defense against claims of negligence in the future.
4. Invite a law enforcement liaison to community meetings.
HOA boards and volunteers are amateurs, not security professionals, by and large. By integrating a professional law enforcement liaison into your community meetings, and by maintaining close contact with your local law enforcement liaison, your Board will benefit from professional expertise, as well as from early warning of crime trends and issues in your area that may not be public knowledge yet.
Your liaison can also alert you to other problems with your property as well, such as security gate access issues for police, fire, and paramedics. Which gives you time to address them before tragedy occurs.
5. Start a Neighborhood Watch program.
An alert and responsive community makes it very tough for criminals to make much headway. Security guards, cameras, and gates can only do so much. It’s much better to have dozens or hundreds of eyes looking out for suspicious activity - and residents who are trained to recognize it, and know what to do when they spot it.
Criminals will normally look for a more vulnerable community, and move on from yours.
Here’s a Justice Department guide to starting your own Neighborhood Watch program from scratch. Your law enforcement liaison can help connect your Neighborhood Watch volunteers with resources and training. For groups looking for additional resources, we can help as well.
Conclusion
While HOAs, landlords, and property managers are generally well-protected from liability for security by Texas law, risks remain. Neglecting to assess and address those risks - both legal and physical - can have serious consequences. However, if you bring in professionals to do a security assessment, and you have a specific plan to address deficiencies, assigning responsibilities, and your security committee and board president can show that they are following up on these action items and seeing that they are corrected, it will be very difficult for a plaintiff’s attorney to show you were negligent.
If you’re interested in getting started, please get in touch!
Footnotes
See Walker v. Harris/, Centeq, 899 S.W.2d at 197; Phillips, 801 S.W.2d at 525; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983).
Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993); El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987).
Exxon, 867 S.W.2d at 21
“In determining whether the occurrence of certain criminal conduct on a landowner's property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.” (Timberwalk, 972 S.W.2d at 757).