That's Criminal! How Can Communities Deal with Sensative Situations?

That's Criminal!

 Serving on a condo board has its challenges—mostly of a relatively mundane, everyday sort, like how to pay for new carpet in  the clubhouse, or what kind of flowers to put in the new beds out front.  Occasionally however, a much more sensitive issue comes along, involving  potentially volatile legal or security situations, like residents with  restraining orders or serious criminal histories. How such issues are handled  is of crucial importance, and can impact not just a community's administration,  but its morale, cohesion, and ultimate value.  

 The first inclination of many board members is to share the news with the  residents of the building or association, but that’s often not allowed. The fiduciary responsibility of board members must be taken seriously; what they say can make a condo liable for  court action. Experts agree that whenever sensitive topics arise, the board  should proceed with great caution.  

 Attorney Charles Perkins, senior partner with the law firm of Perkins & Anctil in Westford, Massachusetts, says that when sensitive topics come up, the  board should take a cautiously limited role.  

 “The board members have to consider the duties they have under the documents and  the law, but they also have to be aware that certain well-intentioned conduct  could expose the association to considerable liability,” he says. “There are a number of statutory and common law issues in Massachusetts that an  unwary board could run afoul of.”  

 For example, there are privacy rights (under both statutory and common law) that  a board may violate by disseminating certain information. With respect to sex  offenders, there are a number of sections under M.G.L. (Massachusetts General  Laws) c. 6 that a board should consider before contacting owners.  

 Attorney Alan Lipkind, a partner at the law firm of Burns & Levinson, with offices in Boston and Rhode Island, says that each matter needs  to be carefully considered on a case-by-case basis.  

 “For instance, there are different concerns when a sex offender already resides  at a condominium, as opposed to barring future occupancy of a unit by an  offender,” he says. “The latter can be addressed through a master deed amendment.”  

 When to Speak Up

 Lipkind says in general, if a board member or manager is advised by a resident  that a crime is going to be or has been committed, he or she should advise the  resident to call the police.  

 “The board member/manager should also call the police and take direction from law  enforcement authorities, being certain to document police instruction,” he says. “If the board’s actions simply encourage communication between the police department and the  unit owners, it will achieve its objectives while limiting any potential  liability. If the board desires additional notification directly from the  condominium, it should review the content and potential recipients of such  notification with counsel.”  

 Generally speaking, one party is not liable for the criminal actions of another.  However, the condominium documents, to a certain extent, may also define the  obligations of the board.  

 “Since the board has control over the common areas of the association, it may  have some affirmative obligations to secure the same,” Perkins says. “There is at least one case where the court found, in a construction negligence  context, that the board’s duty to maintain common areas could be a basis for tort liability.”  

 Saying Too Much

 Sometimes, a board member may speak up and talk to neighbors about one of these  sensitive issues, and that could be problematic for both them and the condo  association itself.  

 “If a board member says something they shouldn’t, it can lead to a potential litigation situation,” says Elizabeth L. White, an attorney with the law firm of LeClair Ryan in  Boston. “If you overstep but no one brings a claim, you get away with it, but there is  potential for a claim against the board.”  

 Michael W. Merrill, a partner with the law firm of Merrill & McGeary in Boston, says board members shouldn’t get involved in arguments and they should call their attorney to get advice on  what to do.  

 “It depends upon the potential for harm in the board’s view,” Merrill says. “By invading the ‘offender’s’ privacy or misstating the facts, you can find yourself in trouble. Be careful  what is said.”  

 Every factual situation is likely to implicate a number of different cases or  statutory provisions, so it’s vital that they check with their attorney before doing anything they aren’t sure won’t get them into trouble.  

 The condominium documents should also be reviewed to determine any specific  concerns or duties. To the extent that a board has a specific scenario in mind,  counsel can perform the appropriate legal research to determine whether such a  scenario has been the subject of a published decision from a Massachusetts  court.  

 A board also needs to distinguish between the normal human desire to be  protective of one’s friends and neighbors, and the limited obligations, powers and duties of a  condominium board.  

 “Although a board should be vigilant regarding the safety of occupants, it must  take care not to create an obligation where there is not one already, nor to  create an invitation to be sued,” Lipkind says. “A board must balance the objective of keeping everyone safe, with avoiding  unnecessary liability for the organization of unit owners. A condominium trust  is not the local police department.”  

 When Sex Offenders Move In

 There is no law against registered sex offenders living in a condominium.  

 In Massachusetts, the law commonly known as Megan’s Law has been adopted in condos and associations. As a result of this law, the  public has access to information regarding Level 3 sex offenders through local  police departments.  

 “With regard to these offenders, the governing statute mandates the creation of a  community notification plan which requires the local police department to  notify organizations and individual members of the public who are likely to  encounter such a person,” Lipkind says. “If the condominium board has concerns regarding the adequacy or implementation  of the notification plan, it can contact the local police department.”  

 However, if the local police department provides assurances that it has already  made appropriate notifications, there is little to be gained by additional  notifications from the condominium.  

 “Bear in mind that by statute in Massachusetts, it is against the law to utilize  such information to ‘…engage in illegal discrimination or harassment of an offender,’ thus there is potential liability associated with the wrongful use of sex  offender information,” Lipkind says. “If the board is inclined to provide additional warnings to some or all  residents, it should consider notifying residents of their right to obtain  information from the local police department and possibly an additional  notification that a registered sex offender may reside in the condominium  community.”  

 In all instances, the board should consult counsel before transmitting such a  communication to minimize potential liability to the sex offender for a claim  of harassment or discrimination under the Massachusetts statute.  

 If residents think there is a problem with a sex offender of some other type of  criminal behavior in their building, they should bypass the board and contact  the local authorities immediately. It’s fine to let the board know, but there is no substitute for notifying the  police if you think there is a chance of a violent or criminal occurrence.  

 Perkins’ office has handled a fair number of sex offender situations in the association  context through the years and offers that there are specific statutory  provisions that come into play that significantly curtail the ability of the  board to disseminate information about sex offenders.  

 “It is our position that the applicable statutory provisions do not appear to  provide for the public to have knowledge of Level 1 offenders,” he says. “Further, as to Level 2 and Level 3 sex offenders, the public can only obtain  knowledge by making a request and assenting to the required terms. It appears  that the right/authority to disseminate information to the public rests  strictly with law enforcement, and not the board.”  

 In the event that the board feels an imperative to provide some measure of  warning to the residents, the board must be mindful of the statutory provisions  cited above and the relative lack of authority for dissemination of the  information.  

 “You have to balance out the risk management. Usually what we do is direct them  to the public resource and remind our members that these lists are out there,” White says. “If you’re wrong or the registry is wrong or there are two John Smiths, you enter into  defamation per se by calling someone a registered sex offender.”  

 A Madoff Situation

 Let’s say a condo or association has a situation like the one involving Bernie  Madoff, where TV crews are running rampant on the property and residents feel  they need extra security to be safe. Surprisingly, in most cases, it’s not the building’s responsibility to make that happen.  

 “Again, there is a general legal principle that one party is not liable for the  criminal actions of another (absent collusion, agency or the like),” Perkins says. “However, whenever there is a heightened risk situation, it would be advisable to  consider appropriate measures (police or security details, etc.) if feasible.  We would also want to consider whether there are any specific provisions in the  documents that may implicate ‘mandatory’ responses from the board to provide security measures.”  

 The common areas of a condominium complex are private property, which are  generally administered by the organization of unit owners. If TV crews are on  the property without permission, the police may be called to remove them.   

 Keith Loria is a freelance writer and a frequent contributor to New England  Condominium.  

 

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