HOA Neighborhood Watch Liability After Trayvon Martin

August 6, 2013

By Curtis G. Kimble.

Since the Trayvon Martin death in Florida, neighborhood watch groups in HOAs have become a hot button issue.  The neighborhood watch group that George Zimmerman, the man that was carrying a gun and shot Trayvon Martin in self defense, was a part of was overseen by the homeowners association.  That HOA was sued by Trayvon’s family for wrongful death and other claims and ended up settling for an undisclosed amount of money that is thought to be over $1,000,000.

When something like the Trayvon Martin death occurs, claims are filed against anybody who could possibly have any culpability, which will include the HOA when the issue even remotely involves or implicates the HOA.  So, what’s an HOA to do?   Should your condominium or HOA establish, or continue, a neighborhood watch?  What are the risks and how do you mitigate them?  HOA insurance specialist Béat Koszinowski answers these questions in his recent article here: Neighborhood Watch Groups in Your HOA.

The single biggest factor as to whether a watch group will create more issues and liability for an HOA isn’t whether the neighborhood watch volunteer carries a gun or other weapon, because if it gets to the point where a weapon could be used, the HOA will likely be sued either way.  For instance, if the volunteer ends up being beaten to death and was not allowed to carry a weapon by the HOA, the HOA will likely be sued by the family of the volunteer (whether rightfully or not).  Instead, it’s when volunteers go beyond simply reporting suspicious activity and instead take law enforcement into their own hands that the issues and liability open up like floodgates.  As Béat points out, “watch groups can do more harm than good when group volunteers go beyond contacting the local police department and act as the HOA’s own law enforcement.  Watch groups that engage perpetrators, use physical force or carry weapons put your HOA at risk for a lawsuit.”

Béat also points out, and I agree, that, ideally, to reduce liability, a neighborhood watch program should have no official connection to the HOA and the board should have no involvement in the creation or regulation of the watch group.  But if your HOA decides to start a watch group, it’s imperative that the HOA:

  1. establish specific written guidelines and policy for the group stating what the volunteer should and should not do, what the volunteer’s duties are exactly, and a procedure when suspicious activity is encountered,
  2. contact the local police department to receive watch group training, and
  3. check that its insurance covers the watch group.

While neighborhood watch groups can serve an important and effective purpose, they can also create more issues and liability.  An HOA board should contact its association insurance professional and attorney and follow certain risk mitigation steps if it operates, or plans to institute, a neighborhood watch group.

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It’s Spring, Time to Ward Against Water Issues

April 1, 2013

By Curtis G. Kimble.

It may be April Fools Day, but it’s no joke that every year around this time insurance companies see many flood issues and claims from homeowner associations.  What’s worse, flood insurance is expensive and the typical HOA insurance policy does not provide coverage for flood and surface water claims.  So, how do you protect yourself and your community?  An HOA insurance specialist Béat Koszinowski of the Buckner Company shared some loss prevention tips with us that I’m passing along:

1.   Problem:  Irrigation system floods.

  • Broken pipes, leaks and breaks that occur during the first few weeks of operation
  • Malfunctioning or incorrect setting of the system causing overwatering
  • General overwatering of certain areas or watering while the ground is still frozen (this can also cause slip and fall liability claims)
  • Runoff due to changes in landscaping, etc.

Solution:  Check the entire irrigation system thoroughly and inspect all areas where the sprinkler system operates at the start of the season and on a regular basis.  Do not activate the system without checking it and making sure it operates properly. The average amount of this type of claim is between $15,000 and $25,000 and preventing this type of issue is a good investment in your property.

2.   Problem:  Landscaping, gutter and roof water runoff.

  • Settling, sinking, expanding or shifting of the ground or landscaping features
  • Ground cover or other landscaping features that are causing water to accumulate near the home and or penetrate the building envelope via the surface or below the ground.
  • Water runoff near buildings that is not properly channeled away

Solution: Check the entire HOA grounds for problem areas and or hire a skilled contractor to check your landscaping, building envelope and other important areas.  This helps to ensure your property and investment is protected.

Tip:  Board members or homeowners should notify the manager or maintenance crew if they notice areas of concern. Don’t assume they know. It is important to understand that most insurance companies will not pay for damages that cause a claim due to wear and tear, rot, mold, latent defect, rust and corrosion, faulty workmanship, faulty design and inherent vice. Inherent vice means losses caused by a quality in a property that causes it to damage itself or destroy itself.

Hopefully, these tips will help keep this important issue in everyone’s mind at this time of year and will help avoid problems that are worse than any April Fools joke.


Let it Snow? Who Should Remove Snow and Ice?

December 11, 2012

By:  John Richards

Most Property Managers dread the “snow days.”  It takes a lot of effort to coordinate your snow removal vendors, especially if there is a continual downpour of the white stuff and it keeps accumulating.  Questions arise such as “how often during a storm should the snow plow go out?”  If a lot of snow is expected, is it reasonable to wait between “pushes” before they are sent back out, and what liability is there is someone slips on snow or ice that was the Association’s obligation to remove?  What about Associations that provide ice melt to their members and asks them to put it on the common area walkways that lead to their door?  Does this create any legal concerns? 

These exact same questions apply to self-managed Associations with the additional circumstance that many smaller, self-managed Associations use “volunteer” homeowners to remove the snow.  The article will address these questions.

When considering the HOA’s obligation to remove snow, first and foremost make sure that you are absolutely certain which portions of the property are either:  (1) general common area; (2) limited common area; and/or (3) part of the owner’s lot.

Next, be clear as to whether the owner or the Association is assigned to remove snow from each of these three (3) different types of areas (Note:  not all Associations will have all three (3) types of property).  Remember, this “assignment” will be set forth in your CC&Rs.  If there is any uncertainty whatsoever in your governing documents, have your attorney draft a snow removal obligation chart that shows clearly “who clears which areas” based upon the CC&Rs.  This chart is then distributed to the owners.

If an Association member (or their guests) slips and falls and is injured due to snow or ice on the common areas, the Association may be liable, but not in all cases.  An Association’s liability is governed by the following concepts:  (1) If the owner had the obligation to remove the snow or ice under the CC&Rs, then the Association will not be liable for an injury that occurred in such an area; (2) If an injury occurs in an area over which the Association has maintenance obligations (i.e., snow and ice removal) then the injured owner/guest may have a good case if (a) the Association had actual or constructive notice of the snowy/icy condition (that is, they should have known); and (b) the Association failed within a reasonable time to reasonably remove the ice or snow. 

Of course, the term “reasonable” is subject to a lot of interpretations and varies with each situation.  However, at a minimum, it is likely to be deemed “reasonable” by a court that an Association has a legal obligation to inspect and remove snow and ice (whether from a single snow fall event or during a continuous snow fall during a storm) on a regular basis for so long as the threat of dangerous snow and/or ice is present.  This could create an extreme burden on those Associations that remove snow “up to the door” of a member but this obligation simply cannot be ignored.  I believe the legal standard in Utah for an Association to remove snow and ice will be the same as found in the Restatement of Torts which implies that the Association will be liable for an injury if it “fails to exercise reasonable care to protect the members or guests against danger….”

As for giving your members ‘ice melt’ and a shovel to take care of the common area in front of their own doors, I do not believe that this a bad idea at all, however, be cautious of the unintended consequence of the Board believing that members are taking care of potentially slippery and hazardous areas when, in fact, this will remain an Association obligation.  One tip, besides those mentioned above, is to hire a reputable and insured snow removal company who will take care of the snow and ice in the parking lot and walkways in a timely manner.  As I typed this entry, snow is lightly falling which is something that I presonally thoroughly enjoy. Consequently, let’s not diminish the beauty of the winter season by unnecessarily exposing our Associations to legal liability for failing to keep the common areas reasonably safe and clear from snow and ice.

 


Our New Utah HOA Law App Helps Associations Follow the Law

December 6, 2012

Up until a few years ago, it seems that a board could get away with not referencing the Utah statutes that apply to HOAs.  Especially in non-condo HOAs, there just weren’t a lot of issues addressed by Utah law, except the procedural and corporate issues set out in the Nonprofit Corporation Act.

But today, the landscape is different.  Many day to day issues, such as adoption and enforcement of rules, spending reserve money, records, providing payoffs, insurance, budgets, and so forth are now addressed in the law and their requirements are not optional.  They must be followed or an association risks expensive litigation and other disputes, especially in today’s  increasingly litigious climate for HOAs, where a technicality or trivial failure of association procedure can lead to a major and costly headache.

As part of Kimble Law’s commitment to provide real value to its clients and to help all community associations operate effectively and properly, we brings you a free app for your smartphone and tablet that provides quick reference to the laws that apply to your association.

Now the laws are available right in your pocket, no Internet connection required!  The statutes are formatted and indented for easier reading than the state’s own website, plus search and bookmark functions make it much easier and quicker to use.  Certain federal regulations applicable to HOAs, such as Fair Housing Act and satellite dish regulations are also included, together with summaries and explanations of those requirements.

Utah HOA Law App Now Available.  Access the Web App online, or download the app to your mobile device today for free!

Click below or search Utah HOA Law in the Apple App Store or on Google Play.

Utah HOA Law for iPhone, iPod:

Utah HOA Law for Android:
Android app on Google Play

file-dec-16-6-51-54-pm


Fidelity Insurance – Is Yours Adequate?

September 6, 2012

By Curtis G. Kimble.

What would your association do if you discovered tomorrow that the association’s bank/investment accounts had been completely emptied by a board member and it was obvious that the association would not be getting the money back?

Levying an immediate and large special assessment wouldn’t solve all the problems this situation would create and is an incredibly hard pill to swallow for homeowners in this circumstance.  The association’s fidelity insurance is the key source of hope here.  Fidelity coverage is often called “employee dishonesty” coverage, and that phrase sums up its purpose quite well.  It protects against theft or embezzlement by employees or officers of a company.

However, one important issue could prevent the insurance company from paying out under your policy – volunteers.

Utah law now has detailed insurance requirements that apply to policies issued to Utah homeowners associations (HOAs).  These laws specify the property and liability coverage required for an HOA’s master policy.  But they do not require or mention fidelity coverage.

So, very often, the coverage of an association’s fidelity insurance policy or bond will simply mirror the fidelity coverage required by the association’s CC&Rs.  This is because insurance companies often make coverage determinations based on what coverage the CC&Rs require.  However, many CC&Rs were not written with an adequate understanding of fidelity coverage in an HOA context, so they simply require fidelity coverage in the same form as any company or corporation would carry.

The problem with that is that typical fidelity coverage for a company only covers paid employees, not volunteers.  This is a square hole and round peg situation.  HOAs are not typical companies or corporations.  HOAs are generally served primarily by volunteer officers and directors, and their fidelity coverage needs to reflect that.

So, CC&Rs have to be carefully written to require coverage of volunteer board members and officers and any other volunteers handling the association’s money.  Additionally, a board should be careful to ensure that their policy for fidelity coverage includes an endorsement modifying the coverage to include volunteers.

If your association is professionally managed, it is important to understand that a property management company’s own fidelity coverage does not necessarily protect a client homeowners association, it protects the management company itself from loss of its own funds.  So, the association’s fidelity coverage should also include coverage for the property manager handling association funds.  This is also typically done through an endorsement (which is like an addition or addendum) to the original policy.

Condominiums maintaining or applying for FHA certification (so the units can be purchased with FHA-backed loans, which account for a majority of purchases today) should be aware that FHA requires an association to carry fidelity coverage in an amount no less than three months aggregate assessments plus reserves.  That amount of coverage is good practice for any association.  Fannie Mae and Freddie Mac also have requirements for fidelity coverage.

Finally, it’s also important not to confuse fidelity coverage with director’s and officer’s (D&O) insurance, which protects the association when it is sued for the “wrongful acts” and decisions of its board of directors or officers, and which is also crucial for every association.


Never Happen in Your HOA? Think Again. Risk Management Is More Important Than Ever.

September 30, 2011

Ignorance is not bliss.  A recent Indiana case highlights the need for homeowners associations to diligently seek out and limit their liabilities.  In March 2011, a jury found an Indiana homeowners association 100% at fault for the drowning death of one child and the personal injury of two other children, resulting in a $30.7 million judgment against the Association.

In March, 2001, three boys were playing on property owned by a homeowners association in Indiana. The property, which contains a lake created by an earthen dam, is open for use by the homeowners.  While there, the boys walked onto the ice near the dam’s overflow crib when one fell through the ice. The other two attempted to aid their brother, but they both fell through the ice as well. One boy drowned.

The Association was sued for negligence.  The plaintiffs claimed the overflow crib created currents that dangerously weakened the ice near the crib from below. They claimed this created a dangerous condition the plaintiffs could not reasonably have had knowledge of, as the ice was visibly safe for walking on at all other areas of the lake.

The plaintiffs claimed that the Association was aware of this condition, but that it failed to place warning signs or restrict access to the area in violation of standard dam safety practices. They also argued that the Association should have anticipated an accident like this would occur, but that it failed to provide safety life preservers, rope or any other safety equipment near the crib.

As Joel Meskin Esq., CIRMS and Amanda L. Krenson, Esq., point out, this case is a wakeup call for all homeowners associations.  Their article reminds us of the many benefits of comprehensive reserve study: “A reserve study is a method of understanding  the HOA’s exposures to risk and liability, whether it be a lake with latent dangers, an unfenced pool, sick trees [that could fall over or with brittle branches ready to break] or the like.  Very often, counsel or management companies, without having a baseline to work from, may not be able to help the association comply with safety issues.  Many dangers and exposures may arise from elements of the association that need repair.  Again, these are items that are monitored in a reserve study.”

Once identified, any dangerous conditions on a property should have warning signs or fences.  The CC&Rs should also contain notice and warning of any such conditions.

We can mutter and disagree with this jury all we want or try to rationalize the distinction between that case and our association, but nothing will change the fact that liability faces HOAs from all directions and a concerted and focused effort is needed to limit those liabilities or risk facing the consequences.

Curtis G. Kimble


Reserves: An Option, a Tool or a Necessity?

August 31, 2011

Any good leader of a major corporation (which most HOAs are) knows to utilize and rely on the input of professionals.  To that end, I recently came across some comments regarding reserves from different HOA industry professionals that I didn’t really expect to hear, so I wanted to share them.

The first wasn’t unexpected, but made some good points (be sure to check out the full article):

From an article by an HOA reserve specialist:

“We are in a situation where too many well-intentioned board members and managers are feeling pressure to have a strong reserve fund (more than 70 percent funded) or low reserve contributions at their associations. They want the association to look good to buyers and lenders. But at what cost?

“Reserve planning is based on estimating future costs and repairs. It’s natural to feel optimistic about the future, but board members and managers shouldn’t hide the facts. If you think “a new roof surely won’t cost that much” or “the paint will easily last another five years,” too much optimism can come back to bite you when there isn’t enough money in the reserve fund to cover expenses.

“A community association’s reserve balance doesn’t care about the board’s good intentions, and the building’s components don’t care about the board’s optimism. The reserve balance is what it is, and components will fail whether you have the money saved or not. Facilities are surprisingly expensive to maintain.”

From HOA insurance and risk management specialist, Joel Meskin, Esq., CIRMS:

“Having insured over 75,000 community associations nationwide, I have taken the position that a properly done and funded reserve study is one of the best and most effective risk management tools available to community associations. By having an effective reserve study, many claims that we see daily would never be made against associations.”

And finally, from a post by HOA lending specialist Alan Seilhammer:

“A community association must always first keep in mind that the correct step to take in paying for capital maintenance improvements is to build adequate reserves based on a professionally prepared reserve study that is updated periodically. If the association has not taken that basic step, what is left are only painful and more costly options:  special assessments and long term financing. I have yet to hear a valid argument as to why building a proper level of reserves over time is not the least cost option or the fairest option spread across all unit owners that enjoy use of the building common elements for varying periods of time.

“Needless to say, building appropriate levels of reserves has been the exception versus the rule. Enter the financiers. A very important lesson to appreciate in obtaining a loan for a capital maintenance project is that the loan is not to fund the project. The loan is in reality replacing the lack of reserves that should have been in place so the association could self fund the project.”

A healthy reserve fund doesn’t just help the value of homes and their ability to be bought and sold, it’s an important risk management tool. Nor are reserves an option or alternative to a special assessment or a bank loan.  As a lender very frankly and non self-servingly stated, a loan (or a special assessment) really just replaces the lack of reserves that should have been there in the first place.

Curtis G. Kimble

 


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