What is the proper role of your community association and its board of directors when it is suspected that there may be something illegal going on inside an owner’s unit? For instance, a neighbor may believe he smells marijuana smoke coming from the unit next door. Or perhaps a board member has observed an inordinate number of televisions, stereo equipment and computers being funneled into the unit. Or worse, maybe screams can been heard coming through the common walls. It can be difficult to know where to draw the line between acting to manage the overall welfare and livability of the community and stepping into a more active role as far as enforcing laws and/or preventing crime in order to provide for the safety of your community’s residents.
As a baseline, it should be remembered that the functions of the association and its board of directors are for the most part determined by the governing documents of the Association. The protective covenants, bylaws and articles of incorporation set forth the powers, authorities and duties of the association and the board. Therein, the association will most likely be charged with the duty of maintaining and managing the common areas in the community. The association assumes dominion and control over these common areas, and as a natural result has a degree of responsibility to provide for the safe coming and going of residents through these common areas.
This responsibility typically manifests itself in things like the removal of snow from the common walking areas, providing adequate lighting, installing railings and fencing, perhaps installing and maintaining security systems like key passes or fobs. Another example of this may be that your association manages and maintains a security gate into the community. These are all common examples of operational duties required of associations in their governing documents which have the effect of providing for the safety of its members. It is important to remember that where an association takes on these duties and represents to its members that they can rely upon the association’s representations that their safety is being provided for, the association can incur liability by failing to meet its obligations and not fulfilling the role it has taken on.
However, it is important to point out that the duty of providing maintenance in the common areas is something that flows from the very specific authority granted to, and management duties imposed upon, the association in its governing documents. There are varying levels of management and control responsibilities that can be imposed upon an association, and every set of governing documents is different. But these management and control responsibilities must be distinguished from a very different concept called police powers. An authority exercising police powers is essentially making laws and compelling obedience to those laws through legal sanctions, the use of physical force, or other forms of coercion. The foregoing definition does not describe the function of a homeowners association or condominium association.
Associations are not making laws and they have no power to enforce the federal, state or local government’s criminal laws or penal codes. The police powers described above belong to the federal, state and local government authorities and it is they that are properly trained in law enforcement techniques, investigation, the use of surveillance equipment, the use of weapons, and necessary or deadly force. Simply put, the association and its board of directors would be acting well outside the scope of its powers and authorities if it attempted to enforce criminal laws. And there would be obvious potential liability for attempting to do so. If an association wrongfully attempted to accuse an owner of a crime, or forcibly detain an owner for a suspected crime, such owner could seek to prosecute the association or its agents for such actions. Not to mention, there are physical safety issues for the board members and/or managing agents themselves if they attempt to get involved in stopping a suspected crime, or detaining a suspected criminal. Leave the police work to the police.
One possible source of confusion for boards or managers may be the existence of a typical covenant provision stating something like: “No unlawful use shall be permitted within the community. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the community shall be observed.” It would be an overly broad interpretation of this provision to conclude that it gives the association the ability to enforce the government’s laws and regulations, and to take police-like action in such enforcement. The safer interpretation of such a provision would be that the association and its board have a duty to act appropriately in the case where they have knowledge that an owner is violating the law. This appropriate action would be to notify the proper authorities of the incident, or ongoing incidents and allow them to undertake investigation and proper action. Should it be apparent that the owner is violating the law; from the association’s standpoint such violation should be treated as a violation of this particular covenant provision. Thus, all applicable covenant violation enforcement techniques and remedies would come into play (i.e. violation notices, fines, injunctions, etc.). Finally, if criminal activity is apparent, the association would be advised to make its owners aware of any potential dangers or risks so that they may act appropriately to safeguard themselves and their homes.
To boil it down, our advice is to let the police do its job. If a complaint or suspicions regarding potential criminal activity within a unit are voiced to you as a board member or manager, a certain amount of preliminary investigation may be appropriate. Perhaps make a general phone call to the unit to see if anyone inside is in distress, or ask the neighbors for corroboration. At the point where suspicions are reasonably confirmed, call in the professionals. Call the police. Call an ambulance. Once the incident is over, or under the control of the property authorities, ask for a copy of any incident reports for your records.