HOAs cannot ban registered sex offenders from communities

NOTE: This week’s question is serious and requires a legal expert, so I’ve turned my column over to local attorney Avece M. Higbee to address it.

Q: Can a homeowners association restrict a sex offender from purchasing a house?

A: No. A homeowners association does not have the power to preclude a sex offender from purchasing a home in a common-interest community.

Additionally, an association may not be able to stop a sex offender from residing in the community as a tenant but this issue is still up for debate.

Also, depending on the governing documents of the particular association, it may be able to notify residents when a sex offender has moved into the community.

Public information about sex offenders

The laws concerning sex offenders have developed over the years as a result of violent crimes against children.

Federal law now requires all states to register convicted sex offenders and keep track of where they live. Nevada law requires those convicted of a crime against a child and those classified as sex offenders to register with local law enforcement agencies.

Certain information about registered sex offenders is available to the public. The information is part of what is called the Central Repository.

The public is authorized to obtain online access to portions of the Central Repository. At present, there are approximately 1,700 registered sex offenders in Las Vegas. The location of these registered sex offenders is easily obtained by going to the Nevada Sex Offender Registry and entering an address. (www.nvsexoffenders.gov).

Bans by associations

With the ease of locating sex offenders in Nevada, residents in common-interest communities are concerned about their children and grandchildren frequenting common area pools and playgrounds where sex offenders may have a right to frequent as well.

At some point, a board of directors for an association will want to know if they can ban sex offenders from residing in the community. First, the board needs to review the covenants, conditions and restrictions to see if there is already a ban on sex offenders from residing in the community. Most CC&Rs will not have such a specific provision but some may have a general provision concerning occupants that are a threat to the health and safety of others.

Usually, an amendment to the CC&Rs is necessary. Before even considering taking on the arduous task of amending the CC&Rs, the board must consider whether a ban on sex offenders would be upheld by a court as well as the costs of such litigation. Some of the reasons a court would not uphold a ban on sex offenders:

Restriction on use of registration information

While owners and board members have access to sex offender information, the information gleaned from the website cannot be used for “any purpose related to … housing or accommodations” … unless authorized by another statute.

There are no statutes that specifically allow an association to preclude sex offenders from residing in a community. Further, the Nevada Supreme Court has not yet provided any guidance concerning an association’s use of the sex offender information to enforce a ban on residing in the community under this statute.

Harassment of sex offenders under Megan’s Law

Megan’s Law is the general label for laws that were created after a child named Megan was murdered by a convicted sex offender who had been released from prison. Nevada’s Megan’s Law precludes discrimination or harassment against a registered sex offender. The website provides a statement that the information concerning sex offenders is for the general public safety and that a person is authorized to use the information “only to protect him/herself or a child.” The warning specifically provides that “(i)t is illegal to use information obtained through this website to … engage in discrimination or harassment against a registered sex offender.” Using the information from the website to target a sex offender and then preclude that sex offender from residing in the community could be considered harassment.

No decisions in other jurisdictions

Only a handful of courts have addressed the validity of an association’s ban on sex offenders residing in the community. These courts have not made rulings that create precedence. And, the Nevada Supreme Court has not addressed this issue.

Public policy concerns

Bans against sex offenders may be contrary to public policy because they could restrict the residency options of the sex offenders who have served their time and been released from prison. Even though many people choose to live within common-interest communities specifically because of the perceived security they offer, that should not become a vehicle to ensure that those problems remain the burden of the former offenders who may be the least able to afford a viable solution. Such bans on sex offenders could approach the harassment dangers addressed by the U.S. Supreme Court when upholding Megan’s Law.

Infringement on the right to sell or lease property

A ban on sex offenders living in a community may be an impermissible restriction on an owner’s right to transfer property. A ban on sex offenders could make a property unmarketable and concentrate wealth. Certainly, there are numerous associations in Nevada and if they all closed their doors to sex offenders, most may be confined to a narrow area.

Possible violations of fair housing

The Fair Housing Act makes it unlawful to discriminate against handicapped people in the sale or rental of property. The question here is whether a sex offender is “handicapped,” which includes a mental impairment that limits a person’s major life activities. What drives a sex offender is unknown and thus, it is unlikely that a sex offender falls under this definition. With courts narrowly interpreting the Federal Housing Administration, sex offenders likely will not be considered handicapped.

What action can be taken by an association?

Provided there is authority in the governing documents, there are some actions that an association can take.

■ Provide the website to the residents. The residents can determine for themselves whether or not sex offenders are living in the community.

■ Notify residents of the presence of a sex offender. However, this can expose an association to liability if the wrong information is provided. The association should not provide the name, address or photograph of the sex offender. (In South Carolina, an association misidentified a sex offender living in the community and the court awarded almost $1 million dollars to the resident based on the representations by the board members).

■ Notify residents that the board, manager and staff are not responsible for locating sex offenders or for letting residents know about the presence of a sex offender.

■ Notify residents to contact law enforcement rather than the association should there be an incident.

Avece M. Higbee is a shareholder with the law firm Marquis Aurbach Coffing. She is an AV-rated attorney with Martindale Hubbell. She was recently listed in Mountain State Super Lawyers 2015 and named to the 2016 Edition of Best Lawyers list.