Condo Media - June 2018 - 14

Asked & Answered

Sex Offenders in Communities
Balancing Security and Liability

It has come to the board's attention that
a registered sex offender is living in a
unit in our townhome community. Board
members agree that we should disclose this
to owners, but we are concerned about the
association's potential liability if we are sued
for identifying this individual. How should
we balance these conflicting concerns
between security and liability?
Carefully. It is certainly possible the offender might sue
you for invasion of privacy or some other claim. But it is
also possible, and probably more likely, that an owner
harmed by this offender would sue the board for negligence for failing to report the potential threat. This is a
classic "sued-if-you-do and sued-if-you-don't" dilemma
that boards confront in dealing with many issues.
Most association attorneys think the obligation to
disclose and protect residents should outweigh the
concern about being sued by the offender. But they also
advise caution in the way you handle the disclosure.
Your biggest liability risk, though not the only one,
would stem from identifying the offender incorrectly, so
you want to be sure the information you have is accurate.
Equally important, you should not identify the offender
by name. Simply inform residents that you have reason
to believe a registered offender is living in the community and explain how they can obtain more information
online or by contacting the local police department.
Additionally, attorneys suggest that your notice
include a reminder to residents that state laws typically
prohibit "threats, intimidation, or harassment" of registered offenders. They also suggest that you have the association attorney review your notice before you send it.
It is also a good idea to adopt a written policy
requiring the board to alert residents if it learns a
convicted offender is living in the community. As part
of that policy, you should designate a board member
to check the registry periodically against the list of
known residents in the condominium (to reduce the
risk that you will fail to send a required notice). You
might also send notices to owners periodically provid-

CONDOMEDIA

ing information about the information available to
them through the sex offender registry.
Some associations deal with concern about sex offenders by barring them altogether. This is an option
you could consider, but there are two important points
to consider:
■ While you may be able to prevent offenders from
living in the community, you cannot legally prohibit
them from purchasing a unit there; and
■ A ban on occupancy would require a supermajority
vote of owners to amend the bylaws; a board resolution won't suffice.
In addition to winning owner approval, the bylaw
must be worded carefully to comply with guidance
adopted by the Department of Housing and Urban
Development requiring that criminal background
checks consider "relevant mitigating information,"
such as the nature of the offense and when it occurred.
To comply with that requirement, attorneys suggest,
a ban on sex offenders should specify that it covers
offenses committed a certain number of years ago or
applies to convicted offenders who have been out of
prison for a specified number of years. Associations
might also consider establishing longer time frames
for more serious (level 3) offenses-another means of
demonstrating the "nuanced" assessment this HUD
guidance encourages.

Condo Media - June 2018

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