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HOAs should explore liability with ‘watch’ programs

By Michael Hunter
Michael Hunter
Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley. E-mail questions.

Note: This week’s column is by my colleague, Kimberly Sullivan, a member of our litigation department.

Neighborhood Watch programs are widely recognized around the country and actively supported by law enforcement agencies. Many police departments offer assistance in organizing neighborhood watch programs, including providing literature, training, and on-site meetings.

Whether an HOA organizes such a program is its choice, and the decision comes with benefits and risks. It is typically recognized that neighborhood watch programs tend to strengthen communities and help reduce crime.

However, when an HOA organizes such a program, it exposes itself to another area of potential risks and liability. In April, Trayvon Martin’s parents settled a wrongful death claim, reportedly in the range of $1 million, against the homeowners association of the Sanford, Fla. subdivision where their teenage son was killed.

While a rather extreme situation, the fatal incident involving its neighborhood watch “captain” in the death of Trayvon Martin, certainly brings the liability issue to the forefront.

The extent of an HOA’s role with regard to safety and crime reduction will play a large role in determining the level of risk and potential liability. For example, the governing documents may not provide authority for such a role, or may be very general, like authority for “maintaining and enhancing property values.”

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Depending on the governing documents, the HOA could be assuming responsibility for duties it is not required to, or even authorized to assume. Additionally, the type of program chosen can limit or heighten the potential risks and liabilities.

Some programs are designed merely as a forum for homeowners to discuss safety issues and share information, while others go much further and have a formal program with neighborhood patrols.

Liability for neighborhood watch programs can come in various forms. One legal basis for such liability is principal-agent law, where the agency relationship is such that the acts of the agent (the watch volunteer) are binding upon the principal (the HOA).

For example, if the agent is negligent in carrying out his role and causes loss or damage, the principal could be responsible for the agent’s actions and resulting damages.

This theory of liability could be the basis for claims like that of Trayvon Martin, where the volunteer is alleged to have caused harm. Or it could be the basis of a claim where, for example, a homeowner is a victim of a crime, such as burglary, and alleges that the neighborhood watch volunteer failed to provide adequate security.

Once the HOA commits to a watch program, various theories of liability could apply, including negligent training, negligent supervision, negligent “hiring,” inadequate procedures etc.

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Addressing the liability issues related to neighborhood watch programs should include careful review of the HOA’s insurance coverage. Depending on the liability insurance in place, it may not cover liability for claims related to the neighborhood watch.

For example, who is an insured, from board members to volunteers, should be determined. Additionally, many policies exclude coverage for reckless or intentional acts, which can be applicable when the volunteer takes on the “vigilante” role.

Insurance coverage issues should be carefully evaluated in conjunction with structuring a neighborhood watch program.

Charlotte attorney Michael Hunter represents community and condominium associations for the firm of Horack Talley. Email questions to home@charlotteobserver.com. Find his blog at www.CarolinaCommonElements.com
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