There is often a breakdown between what homeowners within a community and the board of an association believe are the responsibilities of the association. Our association clients experience this with a myriad of issues, and one area of particular importance is that of homeowner safety.
For associations hoping to understand what their responsibilities are in ensuring a homeowner’s safety and wellbeing, a great place to start is the governing documents. The governing documents will explain an association’s responsibilities in regard to the safety of homeowners, and their additional responsibilities in general.
An association should take reasonable action to protect those present within a community. However, an association cannot and is not required to guarantee the safety of homeowners.
While these matters are rarely black and white, there are a few factors that North Carolina courts will generally consider in determining if an association is/was responsible for a homeowner’s safety:
- Foreseeability: Was the danger foreseeable to the association?
- Control: Was the dangerous condition in an area under association control, such as common area, or on the private property of the homeowner?
- Status of Person Harmed: Was the harmed person on the property lawfully or under some other circumstance?
- Knowledge: Was the association aware of a potentially dangerous condition? If so, did the association take reasonable steps to lessen the danger?
Certain residents within a community are more “at-risk” than others – those who are living in a community under threat of harm due to their condition or living environment. These may include those who are:
- mentally impaired
- emotionally disturbed
- neglected or abused
- domestic violence victims
- human trafficking victims.
Depending on the specific facts surrounding at-risk residents within a community, there may not be a heightened standard of care or duty under law for ensuring the safety of these residents. However, an association would be well served to consider ways in which these residents can be better protected. Additionally, one option we sometimes see associations consider is amending their declaration to include a “no security” provision. (See Safety and Security Issues in Condo and Homeowner Associations.) This language essentially provides that while the association may provide security, they have no duty to provide such security and parties need to use appropriate caution and care in order to protect themselves.
Importantly, an association may be held liable for any action they take that is contrary to North Carolina law. As such, it is always advised that an association consult with counsel prior to taking steps to increase homeowner safety within a community.
If you have questions about any community association (HOA or condo) issue, please contact a Law Firm Carolinas attorney at any of our six offices for assistance.