Wednesday, June 8, 2016

"What Happens Now"?-Homeowner Association Sex Offender Restrictions

Your association wants to pass an amendment to its governing documents which prohibits registered sex offenders from living in the subdivision… What Happens Now?  

            Are there registered sex offenders in your community? This is a question that used to be difficult to answer, but in 1993 the United States Supreme Court ruled that information on sex offenders could be posted on the internet. In 1994 the United States Congress passed the Violent Crime Control and Law Enforcement Act of 1994", aka Megan's Law.  Megan's Law makes it mandatory for all states put a method in place for informing local residents when a sexual offender is moves into their community.  While the notification databases which have been created in response to Megan's Law are very helpful, what else can homeowner and condominium owner associations do?  Currently, there are close to 700,000 registered sex offenders in the United States. Some associations have begun trying to ban sex offenders from their communities. This is a hot issue, and is still up for debate. While some lawsuits have been brought to court, precedent has yet to be set for this issue.

           With more common areas in communities, residents are becoming increasingly concerned about sex offenders.  Residents want to feel comfortable sending their children to common areas such as pools or playgrounds and they don't want registered sex offenders in the area.  Many residents are also worried about the negative impact that sex offenders will have on their property values. 
           Is it legal for your homeowner or condominium association to pass an amendment banning sex offenders?  If the owners of a community want to pass an amendment to their governing documents restricting sex offenders, they are most definitely able to do so if they comply with the amendment requirements found in their governing documents.  Enforcing this restriction is the difficult part.  It would be very difficult to restrict a sex offender from buying a home.  Restricting residency within the subdivision would be more effective. This way you would only be preventing a sex offender from living in a community, not restricting them from owning property.  Although a little easier to enforce, restricting sex offenders from living in the subdivision may still prove difficult to enforce against future owners.

           Banning sex offenders does come with its own set of risks.  Banning sex offenders could give residents a false since of security and cause them to live less cautiously than necessary.  There is also a huge financial risk in passing these restrictions. Your community may have to go to court to enforce this restriction at some point and this could prove to be a very expensive and time consuming endeavor, especially if the sex offender is already a homeowner.  The residents of the association must be willing to spend more money to cover the cost of enforcing the restriction; otherwise it should not be approved.

          Courts have held that (1), residency restrictions are a form of civil regulation intended to protect children and thus, the principal argument against these restrictions (that they amount to ex post facto laws) does not apply; (2), the federal constitution does not include a right to live where one chooses; and (3), residency restrictions are rationally related to states' (and the association’s) legitimate interests in protecting children from harm.

         There are many issues to consider before your homeowner or condominium association passes an amendment banning sex offenders.  Before approving or voting on any restrictions you should speak with a lawyer who specializes in community association law.  

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