William E. Miller Blog

Friday, January 13, 2012

Community Association's Duty to Protect under the Four Maples HOA case


Would your community association have any liability if a renter in your association is the victim of a crime? What if you have entrance gates (that are not working), but the association is not a gated community? What if your property management company promptly called the gate company to repair the gate, but was waiting on parts? The answer now could be yes!

The Middle Section of the Tennessee Court of Appeals recently released a decision in the case of Marquette Weaver v. Four Maples HOA and Westwood Management Corporation. It is our opinion that this case will dramatically alters the potential liability for community associations in Tennessee.

The HOA and property management company were sued after a renter was assaulted and shot in a failed home invasion type robbery. The renter sued on a theory that the entrance gate was broken, and the broken gate allowed the intruders easy access to the community. The gate was damaged by an auto accident, and the property management company had been alerted and promptly called a gate repair company. However, while the community association was waiting on new parts, the gate was simply left open, since it was not operational. It was during this time that the assault took place.

The trial court found that the HOA had no liability under the facts of the case. The Court of Appeals reversed and remanded the case for trial, finding that a prior attempted burglary put the community association on notice that another such crime was foreseeable, and that the HOA had a duty to protect its renter. The court held that “There is no duty upon the owners . . . to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm . . . whereupon a duty of reasonable care to protect against such act arises.”

The practical impact of this is that once criminal activity has been reported to the police within your community association, it may create a legal duty to protect your residents. While the court agreed that there can be a balancing of the cost of protection vs. the likelihood of harm, this case stands for the proposition that where prior criminal activity has occurred and the HOA is aware of it, there may be a duty to protect.

Finally, this case reminds us of the need to keep up with proper maintenance and to do so promptly. Had the gate been fixed before this crime occurred, the community association would have no liability. However, the negligence in not fixing the gate promptly together with the knowledge of the prior criminal activity created a sufficient issue to force this matter to trial and to subject the community association to potential liability.

You can download the case at http://dl.dropbox.com/u/7189251/Four%20Maples.pdf




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