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posted: 8/1/2020 7:00 AM

Associations can’t prevent all crime

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Q: Video captured a stranger to our association breaking into the garage of our association by using a crowbar on a locked door in the middle of the night. This person then took items from unlocked vehicles. Nothing like this has occurred before. An owner of one of the vehicles claims the association must reimburse him for his stolen personal property. Is this a correct assertion?

A: The owner's negligence aside in leaving his vehicle unlocked, an association is generally not liable for the criminal acts of third parties. That said, there are three general exceptions to this general rule.

The association may be liable to the residents if 1) the injury, although due to criminal activity of a third party, occurred because of a condition of the premises; 2) if the association attempts to safeguard the premises but does so negligently; or 3) if by the association's acts it creates a hazard that did not previously exist.

None of these exceptions appear applicable to the facts here. However, the association may now have a duty to take steps to prevent a similar break-in to occur in the future. An example might be to increase the lighting at this door. The owner should make a claim with their own insurance carrier for the stolen items.

Q: A person who does not live in our association, but who is known to the community and lives down the street, frequently "hangs out" on our association grounds. We contacted police when he refused to leave when asked; however, the police refused to arrest him for trespass. The responding police officer stated that there were steps the association needed to take before the police would make an arrest. What might these steps be?

A: Because this person is known, a letter should be sent to this person barring him from the property. The letter should indicate that if he is found to be on property within the association at any time in the future, he will be trespassing and subject to arrest by the police department and prosecuted to the full extent of the law. A copy of the letter should be provided to the local police. It may also be helpful to install "no trespassing" signs at the property, as well.

Q: The monthly assessments for my condominium include the cost of certain utilities for the unit. A friend of mine owns a condominium elsewhere. The utilities for the units at his condominium are individually metered to each unit and each owner pays their own utilities; they are not included in the monthly assessment. Is there an advantage of one over the other?

A: In a condominium, an owner's share of the common expenses is allocated to a unit based on the unit's percentage of ownership in the common elements. So, if utilities, including water, electricity or gas, for the units are included in the monthly assessment, the unit's share of those expenses will not be based on actual consumption, but will be based on the unit's percentage of ownership.

The amount of those utility expenses allocated to the unit, and included in the monthly assessment, may therefore be higher or lower than what that expense would be to the owner if separately metered to the unit, and paid for directly by the owner to the utility. This would depend on the unit's percentage of ownership and actual consumption of those utilities. If unit utilities are included in the monthly assessment, some owners will pay more than what they would if separately metered to the unit; some will pay less. Such is a fact of life of the condominium form of ownership. But there is also something to be said about predictable monthly expenses.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.