A Sex Offender Has Moved Into Your HOA ... What Now?

A Sex Offender Has Moved Into Your HOA ... What Now?

March 2009
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If you're like most homeowners, your first thought when you learn that a sex offender has moved into your community is: What can we do to get the offender to leave? Here's what you must know about your association's—and the offender's—rights.

The trend favors associations

Start by knowing that laws governing sex offenders vary from state to state, and you must determine your own state's law before you make a single move. "Across the country, more and more supreme courts have been ruling that an association can and may limit who can be in the building," says Sima L. Kirsch, a principal at the Law Office of Sima L. Kirsch P.C. in Chicago, "and that there's no prohibition of the secondary dissemination of information about sex offenders."

However, that's not true in all states. "In Minnesota, as in many states, the most dangerous sex offenders have to register with the state, and they can't live within a certain distance of schools or where children congregate," explains Nancy Polomis, a partner at Hellmuth & Johnson PLLC in Eden Prairie, Minn. "But they have to live somewhere. Everybody takes the NIMBY approach—yes, they have to live somewhere, but not in my backyard. Provided that offenders have been properly registered, the police have done the proper investigation before they move in, and they're within the parameters of they can live, there's not a lot associations can do. Some people have the mistaken belief that community associations have some special power or that the association affords them an extra legal bubble. But it doesn't."

On the other hand, Florida allows associations to implement restrictions. "In Florida, unless there's a provision in the association's governing documents that deals with whether people who've been convicted of crimes can live there, the association has no power to keep those people out, whether it's a murderer who's been paroled or a sexual predator who's served his or her time," says Robert L. Tankel, principal at Robert L. Tankel P.A. in Dunedin, Fla. "To keep them out of the association, it has to be voted on by the members and in the governing documents. I strongly urge that associations consider a document amendment to deal with the issue.

"If it's not in your governing documents," adds Tankel, "work with legal counsel and local law enforcement to determine the best route of notification, if any. There's no standard protocol for what to do about sexual predators or offenders within a community association. It's not defamation to tell people that someone is a convicted criminal, but it may be beyond the association's jurisdiction."

Don't step over the line

Remember that many states specifically prohibit harassment of sex offenders. For example, Washington lawmakers have been careful to include on public notification forms that "threats, intimidation, or harassment of the offender will not be tolerated," according to Justin D. Park, an attorney at Romero Park & Wiggins P.S. in Bellevue, Wash.

Despite prohibitions against harassment of offenders, in some states, landlords and community associations have been held to have a special relationship with their tenants or residents that requires them to take steps to protect against criminal acts that would harm their customers, guests, or tenants. Washington isn't among those states, nor is Hawaii, but California is. Whatever your state's laws, here are Park's tips for protecting your residents and guests from harm by sex offenders in your association.

1) Identify areas under your control. In areas in which you have a duty to protect your residents and perhaps their guests, establish reasonable security. Cameras and guards are probably not necessary for smaller properties, but understanding your security responsibility will go a long way toward fulfilling it.

2) Decide whether you'll allow sex offenders as residents. It may be impossible for an association to block a buyer of a condo unit. However, a rule excluding convicted sex offenders as tenants may be reasonable and could be enforced against all tenants if properly adopted.

3) Form "block watch" organizations. Properly organized block watch groups have been shown to be effective in reducing crime. In addition, bock watch captains, typically elected by their neighbors, usually receive specific information on sex offenders in their neighborhood.

4) Include the sex offender database on a list of safety resources for residents. If your property has a newsletter, it can regularly publish a list of safety resources, including contact information for local police, fire, and hospitals. In that list, include the Web site for the local public sex offender database. You can also provide the information in the form of a flyer.

5) Inform security. If your property has a security force, inform security personnel about the offender. You must instruct them not to harass or confront a law-abiding offender and not to disclose to other residents the offender's location. However, their knowledge of the offender's presence can have the same effect—of raising awareness—as a block watch.

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