Countless communities within the State of Florida have private roads and are gated. This often leads to the owners, the residents, the association and, in fact, the directors believing that the association is actively providing “security”. Unfortunately, all too often, the association is only providing gate access “control”. WHY IS THIS IMPORTANT? Please appreciate that if the association purports to provide security (and/or has led the residents to believe that it is providing security), ostensibly, the association may have a duty to reasonably do so. This, unfortunately, puts the association at risk. In fact, successful suit(s) against association(s) have resulted in verdict(s) in the millions of dollars.

In addition to the above, please appreciate that most associations may not even be able to reasonably and properly, much less, fully secure their communities. Consider, if your association even has a wall completely encircling the perimeter, and, even if it does, how high is that wall? Are there any gaps? Where does the wall end? How easily is that wall breached or scaled? Who guards any and all openings 24/7? How exacting are your “security” measures? How easy is it for someone to tailgate another car through your gate system? How many vendors enter your community, and what kinds of checks and balances does your community have on the vendors, and, more importantly, on the other individuals (e.g., guests, residents, etc.) entering the community? In fact, how much does your association even check on its own vendors and the personnel delivering goods and services to your association?

In view of the above, your association may want to consider having its law firm check your contract with your “security” company, as there is an excellent chance that they limit their services to things such as gate access, and in fact, your contract may expressly exclude security. If this is the case, and the association is purporting to provide security, your risk and potential liability may be escalated. Similarly, if the Board, in its newsletters, meetings, minutes, websites, etc. discusses security and/or in any way suggests that the association provides security, this, too, can create significant potential liability for your association.

Given the above, each of our affected clients may want to consider undertaking steps to, at least, try to mitigate the above risk despite the previous actions, statements, and representations of the association, its Board, Management and/or other individuals purporting that the association provides security and/or that the community is secure. In part, this may be able to be accomplished by Clayton & McCulloh drafting a letter for the association to provide to each of the owners and residents, etc. expressly disclaiming the concept that the association provides security, and in fact, expressly delineating that the association does not, in any way, shape or form, provide this service. Of course, we would, likewise, lay a proper foundation for such discussion and explanation in such a letter. Additionally, the association may want to take greater steps and post such letter and position on its website. Perhaps even more effective would be for the association to amend its documents to provide a provision which expressly disclaims that the association provides any security.

As many associations are aware, often, their Governing Documents, or amendments thereto, expressly disclaim any responsibility for toxic mold. Similarly, associations with private roads and gates may amend their Documents to expressly disclaim any such responsibility. By implementing such provisions and disclosures, some of the risk(s) associated with the owners’ and residents’ perception, and prior (mis)representations by the Developer, management, Board Members, officers, sales people, etc. may be reduced and/or mitigated.