Forbes Bender & Paolino P.C.

By Katie Robinson

Among the many homeowners associations that exist throughout the United States, some are now  considering the prospect of transitioning to gated communities.  While an association may approach this question as an answer to a lack of security, becoming a gated community is actually a multi-faceted process and is not one to be taken lightly.  Associations must consider legal and monetary issues, among others; to simply seek the safety of walls and gates is to underestimate the entire process.

How, exactly, does the infrastructure of a gated community differ from that of a normal HOA?  Alexander DiSanti, Esq., an attorney at Forbes Bender Paolino & DiSanti, P.C., in Media, PA, explains.  “A gated community is a type of residential community.  It contains security features, such as walls, fences, guardhouses, and security gates that open and close as each vehicle enters or leaves the community.  There are positives and negatives associated with gated communities,“ DiSanti says.

Gregory Chandler, an attorney at Eads Murray & Pugh, P.C., in Indianapolis, IN, also notes that security is a big factor for associations looking to make the transition.  “Gated security creates the impression of increased protection and upscale living, which has made these types of communities increasingly popular.  Gated communities have a certain aesthetic quality that many people find appealing.  Arguably, it is a selling point that will help preserve and increase property values, though I know of no data to support that,” Chandler explains.

Gated communities can provide associations with many positive additions for their residents.  DiSanti lists some of those positives as “an added reality and/or sense of security and decreased criminal activity, which is a primary concern for those who choose to live in gated communities; increased privacy, including the virtual elimination of solicitation by those outside the community; an added sense of prestige and exclusivity; the reduction of traffic, which is achieved by preventing those outside the gate from using the roadways within the community; added control of the community as a result of physical barriers to restrict people from entering the community; and the creation of a private world.”  Some associations may be looking to create a real sense of a tight-knit community.  With walls surrounding the property, and a gate keeping out unwanted visitors, gated communities can provide a very physical representation of that community.

While many associations and residents may assume that a gated community will automatically provide them with greater security, that is not necessarily the case.  As Chandler says, “The problem with gated communities is that they tend to create a false sense of security.  Owners are enticed by what they deem to be increased protection from criminal activity, but the reality is that these notions are somewhat illusory.  There have been studies conducted over the years indicating that the rate of crimes, such as auto thefts and burglaries, is just as high in gated communities as in non-gated communities.  Criminals can, and do, figure out ways to circumvent the gates.”  Thus, gated communities do not always succeed as fortresses of security.  When considering the transition, associations need to weigh this reality against the cost of building the infrastructure of gates and walls.  The security provided may not mitigate the cost of the transition.  Chandler agrees, saying, “The practical reality is that gated security may not be worth the increase in costs.”

Associations may also assume a greater liability by attempting to provide this extra security.  “Associations do not typically have a legal duty to provide security for the community or its common areas.  Hypothetically, it could be argued that by becoming a gated community, the association has voluntarily assumed a duty that did not previously exist.  As a result, if criminal activity were to occur, there may be an increased liability risk to the association,” Chandler notes.  Associations must consider that gates can increase the risk and cost that they assume.

The drawbacks to a gated community extend beyond those of cost and a false sense of security.  As DiSanti notes, “Some negatives include increased purchasing costs and higher expenses in the form of maintenance costs and paying security workers; the need to drive outside the community gates to access businesses and to shop; a feeling of isolation; the barrier to welcomed guests; and the promotion of distrust of outsiders.”  Chandler adds that the drawbacks may simply come down to the fact that the gates can pose an annoyance to residents and homeowners.  Some homeowners could also provide access codes to their guests, vendors, or other non-residents.

Beyond the abstracts of gated communities, the process of actually making the transition can be quite extensive.  DiSanti explains, “Typically, all aspects of infrastructure are the responsibility of the community association, including gates, walls, fences, and guardhouses.  These are initially assumed by the developer and passed onto the community association.  Any and all maintenance and operational costs, such as paying security workers, are directly or indirectly borne by the community association.”  Chandler agrees that an association’s budget will take a large hit after making the decision to become gated. “It is likely that there will be a significant increase in cost to the homeowners.  Gates are expensive to maintain.”  He notes that the association takes responsibility for the gate, infrastructure, and security personnel needed to run this new facet of the community.

If, however, an association weighs the pros and cons of the gated community and decides to further explore the transition, it will invariably consult its residents as the next step.  DiSanti underscores the difficulty of convincing homeowners to undertake the costly, extensive process.  “It would probably be difficult to transform a non-gated community to a gated community.  The issue, at a minimum, would spark contentious and vigorous debate.  Those who oppose it would say that they are being forced to accept something that they did not want at the outset, or that they will be forced to leave the community to escape the gated community,” he says.

Provided that the residents consented to the transition, the association would need to approach the process by returning to the governing documents. DiSanti provides a list of preliminary questions for the association to ask:

• Do they provide the general foundation that would allow for the creation of a gated community?
• What are the steps that need to be followed to make this a reality?
• What approvals are needed?
• How many people need to support the transition?
• Must the decision to proceed be unanimous?
• How are votes cast?

“The law of a particular state would have to be analyzed to determine if there is statutory or case law that provides insight into the rights of a community to make this transition, as well as the processes that must be followed to effectuate this change,” DiSanti adds.  If state law and the governing documents allow, the association can proceed.  Despite the drawbacks and costs of gated communities, associations must ultimately decide for themselves if they feel that a gate would promote a sense of safety and community within those newly-erected walls.

Alexander D. DiSanti, Esq., is an officer of Forbes Bender Paolino & DiSanti, P.C.  Forbes Bender Paolino & DiSanti, P.C., is a full service law firm with offices located in Delaware County (Media) and Chester County (West Chester), Pennsylvania.  Alex has been representing condominium and homeowner associations for over 25 years.  He has the highest lawyer rating given by Martindale-Hubbell of AV Preeminent.  Alex was selected for inclusion in Pennsylvania’s Legal Leaders Presenting Top Rated Lawyers for year 2013.  At the request of the National Business Institute, he has served as a faculty member and instructor of Legal Aspects of Condominium Development and Homeowners’ Associations, a legal education seminar for lawyers.  Alex can be reached at (610) 627-1700 or adisanti@fbpdlaw.com.  Visit his website at www.fbpdlaw.com.