Is a Michigan Condo or HOA Liable for Criminal Acts of Third-Parties?
Whether there is an increase in violent crime or an increase in reporting and coverage of crime, it seems that our lives are constantly being inundated and interrupted with reports of violent activities. Your home is your castle, your safe space. But imagine the worst-case scenario where a crime occurs and that sense of safety is lost. After dealing with the direct results of the crime, an owner may look to hold their condominium or homeowners association responsible in some way. Not directly for the crime, but for failing to protect against the criminal acts of a third party.
Take for example a shooting that occurred in an Atlanta, Georgia condominium building in August 2022. An owner of a unit in the 1280 West condominium was described as a disgruntled resident. In what Atlanta police described as a targeted attack, the owner shot and killed the condominium’s property manager and wounded the condominium building’s chief building engineer. Or the shooting at an apartment complex in Oxford, Michigan in April 2022, where a father was shot and killed while sitting inside his car at 3:00 a.m.
After dealing with the direct effects of a crime committed in a condominium or subdivision, an owner may look to place the blame on the condominium or homeowners association. This article will discuss if and when a community association can be held liable for the criminal acts of third parties.
When is a Community Association Potentially Liable?
Generally speaking, an owner could seek to hold a condominium or homeowners association liable for the criminal acts of third parties under a claim of premises liability. Negligence and premises liability are similar, in that each require a plaintiff to demonstrate that a defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff suffered damages, and the defendant’s breach was a proximate cause of the damages. The primary distinction between negligence and premises liability is that negligence is based on a person’s duty to act with care in a given activity, while premises liability imposes a duty because a person has control over land. Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 624, 626; 971 NW2d 716 (2021).
The theory underpinning premises liability is that the possessor of land has a duty to act reasonably to protect against foreseeable dangers and harms that threaten the safety and security of those who enter onto the land. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). But a land possessor’s duty does not require that they guarantee the safety of every person who comes onto the land. Premises liability rules “balance a possessor’s ability to exercise control over the premises with the invitee’s obligation to assume personal responsibility to protect themselves from apparent dangers.” Id. at 459-460.
Michigan courts have addressed the issues of duty and foreseeability in the context of criminal activities of third parties, although the cases do not involve a condominium or homeowners association. “[A]s a general rule, there is no duty that obligates one person to aid or protect another.” Krass v Tri-County Sec., Inc, 233 Mich App 661, 670; 593 NW2d 578 (1999) (quotation marks and citation omitted). Nonetheless, a land possessor has a duty to protect against the “foreseeable criminal activities of third parties in the common areas” of the premises. Holland v Liedel, 197 Mich App 60, 62; 494 NW2d 772 (1992). And whether the risk of harm from a third party’s criminal activity is foreseeable is a question of fact that must be determined on a case-by-case basis. Fortunately, there are cases that provide helpful guidance.
In Carlini v Numbers Private Membership Club, Inc, unpublished per curiam opinion of the Court of Appeals, issued January 17, 2006 (Docket No. 261979), an employee of the defendant club kicked an individual out of the club and closed the door. The individual then assaulted the plaintiff who was standing in line waiting to get into the club. The Court concluded that the assault was not foreseeable:
The NPMC employee’s actions of yelling at the unknown assailant, who had just been kicked out of NPMC and was arguing with his girlfriend outside, to take his dispute elsewhere and then returning to NPMC and shutting the door, does not make it foreseeable that the unknown assailant would assault plaintiff, who was standing outside waiting to get into NPMC, and who had asked the assailant to “calm down.” Plaintiff asserts that consistent with MacDonald, defendants had a duty to call the police. However, there is no evidence that the altercation with plaintiff was foreseeable. In fact, plaintiff himself stated that he did not have any time to react to the unknown assailant’s actions. The attack commenced suddenly. There is no basis to conclude that had defendants summoned the police, the attack would have been thwarted.
Courts outside of Michigan have specifically addressed criminal activities in a condominium or subdivision. In the context of an assault outside a condominium building, a Connecticut court held that a defective intercom and buzzer system was not the proximate cause of the assault because the condominium association could not reasonably foresee that the defective system could lead to an assault:
In the present case, the plaintiff offered no evidence that the malfunctioning intercom system was designed to provide security to a person outside the building. The defendants’ failure to maintain the intercom system was inconsequential and was not the proximate cause of the assault. The injury may likely have occurred without any negligence with respect to the intercom system.
The defendants could not have reasonably foreseen that a malfunctioning intercom system might provide a substantial incentive or inducement for the commission of a violent criminal assault on their property by one stranger upon another.
We rule that, as a matter of law, the jury could not reasonably have found that the assault on the plaintiff and the resultant injury were within the foreseeable scope of risk created by the defendants’ failure to maintain the intercom system. Therefore, the plaintiff failed to establish the necessary causal relationship. [Medcalf v Washington Heights Condominium Ass’n, 57 Conn App 12, 18; 747 A2d 532 (2000) (citation omitted).]
A case from New York that also involved a defective intercom likewise held:
The plaintiffs assert that the absence of an intercom system in the entrance to the defendants’ building was a proximate cause of the assault. However, it is undisputed that at the time of the incident, the lock to the lobby door was functioning, as was a buzzer system whereby persons could gain entrance to the lobby. Other than mere speculation in the affidavit of the plaintiffs’ “security expert”, there is no indication in the record that the absence of a functioning intercom was a “substantial causative factor in the sequence of events” that led to the assailant’s presence in the lobby of the building. Under such circumstances, it cannot be said that the absence of an intercom was a proximate cause of this unfortunate incident.
Additionally, the record is insufficient to raise a triable question of whether the defendants had such notice of prior criminal activity on the premises to make the instant occurrence foreseeable. [Mkrtchyan v 61st Woodside Assoc, 209 AD2d 490, 490-491; 618 NYS2d 825 (1994) (citations omitted).]
These cases illustrate that every claim involving the criminal acts of a third party are fact specific, and therefore, it is difficult to draw a bright line rule about whether and when a criminal act is foreseeable such that an association has a duty to protect the victim of the crime. But these cases do show that a crime is not foreseeable when (1) a crime occurs suddenly and the victim was not involved in a previous altercation with the assailant, (2) a crime may have occurred regardless of whether a security system was functioning property, and (3) when an association did not have prior notice of criminal activity.
As it relates to condominium associations specifically, the Michigan Court of Appeals has held that a co-owner cannot maintain a claim of premises liability against their condominium association because a condominium association does not owe a duty to its co-owners to keep the premises safe. Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640, 643; 886 NW2d 891 (2015). The Court of Appeals reasoned that under premises liability law, the duty that a possessor of land owes to others depends on the legal status of that other person, an invitee or licensee. “A ‘licensee’ is a person who is privileged to enter the land of another by virtue of the possessor’s consent, while [a]n ‘invitee’ is ‘a person who enters upon the land of another upon an invitation . . . .’ ” Id. at 643 (internal quotation marks omitted). In a condominium, “condominium owners are co-owners as tenants in common of the common areas of the development,” meaning all co-owners jointly own the common areas. Accordingly, a co-owner does not enter onto the land of another while in the common areas of a condominium, and therefore, the condominium association does not owe that co-owner a duty under premises liability.
This understanding of premises liability for condominium associations may change in the future, as the Michigan Supreme Court is currently considering a case of whether a condominium association owes a duty to the co-owners to maintain the condominium for purposes of premises liability. See Janini v London Townhouses Condominium Ass’n, 509 Mich 1072 (2022). Until then, condominium associations are likely protected against liability for a co-owner’s claim of premises liability involving the criminal acts of third parties.
For homeowners associations, though, there is no automatic protection against claims of premises liability brought by an owner. Instead, a homeowners association will need to defend against a claim by asserting that one of the elements was not present, such as the homeowners association did not owe a duty to protect the owner from the criminal act of a third party because the criminal act was not foreseeable. And although each case is different and the issue of duty and foreseeability must be determined on a case-by-case basis, a general guide is that a homeowners association has a duty to protect against reasonably foreseeable criminal activities and should contact the police if it is aware that a potentially dangerous or criminal situation exists.
How to Protect Against Potential Liability
To protect against potential liability that may arise from the criminal acts of a third party, we typically include language in an amendment to the governing documents that disclaims liability for third-party criminal acts. The typical language that we include is as follows:
The Association may, but is not obligated to, take such action as it deems appropriate to address potential security concerns within the Condominium or at an Association activity. No representation or warranty is made that any security measures undertaken by the Association will prevent damage to Person or property caused by third parties. Each Co-owner acknowledges, for themselves and their tenants, occupants, invitees, and licensees, that they assume the risk that criminal acts of third parties may occur on the Common Elements or at an Association activity. Further, each Co-owner, for themselves and their tenants, occupants, invitees, and licensees, waives any liability against the Association, its agents, and any volunteer Board members, committee members, or officers for any damage, injury, or loss to Person or property arising from or related to the criminal acts of third parties, a failure to provide adequate security, or ineffectiveness of any security measures undertaken by the Association.
Although there has not yet been a case in Michigan that addresses this type of disclaimer of liability, a case out of Georgia affirmed that such a disclaimer would protect against liability in a claim based on the lack of security in an association:
At Bradford Square, perhaps because of liability exposure, increasing cost of insurance to be born as a common expense, or for any number of reasons, the unit owners/members of the Condo Association expressly decided by a minimum two-thirds majority vote that the Condo Association would not have a duty to provide security for the condominium property and that such obligation would remain with the unit owners/members individually. Thus, while the Condo Association still has a duty to “maintain” the common elements of Bradford Square under both the Act and the By–Laws, such maintenance specifically does not include providing security. That was the unit owners/members’ choice.
* * *
Because the unit owners/Association members specifically contracted that their Condo Association would have no duty to control the security of the common elements at Bradford Square, the Condo Association cannot be found responsible for the maintenance of any alleged continuing nuisance existing on the common elements due to an alleged lack of security. There must be a duty to abate a nuisance before liability may attach. [Bradford Square Condominium Ass’n, Inc v Miller, 258 Ga App 240, 246-247, 248; 573 SE2d 405 (2002).]
Conclusion
With the increase of crime that takes place in condominiums and subdivisions, owners may seek to hold their association responsible for the crimes perpetrated by third parties. In Michigan, condominium associations currently are not liable to co-owners for damages under a theory of premises liability. But a case is currently before the Michigan Supreme Court that may change the state of the law. Homeowners associations on the other hand may not enjoy similar protection against premises liability claims, depending on how the common areas are owned, and should therefore take reasonable steps to protect against reasonably foreseeable criminal action and call the police when a potentially dangerous situation is occurring.
To protect against or minimize the potential liability that an association may face, a community association should consider amending their master deed, bylaws, or declaration to include a provision that disclaims liability for the criminal acts of third parties. A community association that would like to include this type of protection in their governing documents should contact a community association lawyer to discuss the disclaimer and the general amendment process.
Michael T. Pereira is an attorney with Hirzel Law, PLC, and focuses his practice on community association law and drafting, reviewing, and amending governing documents. Mr. Pereira received his Bachelor of Arts in Political Science from the University of Michigan and his Juris Doctor degree from the University of Detroit Mercy School of Law, where he graduated second in his class. After law school, Mr. Pereira worked as a research attorney and law clerk at the Michigan Court of Appeals before joining Hirzel Law, PLC. Mr. Pereira can be reached at (248) 986-2290 or mpereira@hirzellaw.com.
