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Real Estate & Property Law

: California Condo & HOA Law



The question of sex offenders in the neighborhood is coming alive again. Not that it ever died. But with the discussions flying about of the release of California prisoners en masse, including sex offenders, the burning questions are coming to me. Here is a good one:

"Our Board [officer] recently had [a relative of his] move onto his property. One of the HOA Members recently found out that the [Officer's relative] is a registered sex offender. Should the Board [Officer] have informed the Board and/or the HOA? Is this considered part of a Director's fidiciary responsibilities?"

Wow, this is a very good question. There is no case law on this that I know about. Board members do have a duty to warn of or take steps to mitigate or eliminate any known dangers to the residents. This can mean so many things, such as brighter lights in the parking lot to avoid nightime attacks, warnings/yellow tape/barriers when there is construction going on, repair of sidewalks when trip hazard "arise", etc.

And in this vein of dealing with sex offenders in the neighborhood, the question also arises: "Once the board knows about a sex offender in the neighborhood, what duty, if any, does it have to inform the other owners and residents in the development?"

Some practitioners take the position that the board has the duty to inform owners and residents about sex offenders in the neighborhood, some advocate petition letting and meetings, some want warnings posted, and some advocate proposing amendments to the CC&Rs that prohibit sex offenders from living in the neighborhoods.

And others (like me) take the position that it is not the board's responsibility to get involved in advocating picketing or to try and figure out if the sex offender presents a danger or not, or to alert the neighborhood. Why do I take that position? Because once "Pandora's box' is open, the question becomes how much information should be provided to residents? And what precautions should be taken? And what communications should be sent out? And what puts the board over the line? What leads to panic, to lower property values. What damage can be done in starting the ball rolling?

In the case above, I do believe that if any board member knows about a sex offender in the neighborhood, whether it be the [Officer's ****], the manager's cousin, the landscaper's crew supervisor, or the resident of 3B, it does make sense to bring it up for discussion, and make a reasonable determination of what to do about it. Thus, there will be documentation rather than rumor or conjecture about what the Board did. I do believe any board member who has invited a sex offender to live or work in the neighborhood has a duty to let the other board members know, so that situation can be dealt with reasonably. If the problem involves contractors on site, the Board can take measures to assure those persons either are not hired or they are doing work where they will not have any contact with residents, and/or perhaps they will be "supervised" closely. If the offenders live in the development, that is different.

Once a resident sex offender is disclosed to the members though, a question does arise as to whether the resident poses a threat and if so what measures should be taken. My take is that before the board goes there, I believe there are more appropriate methods to deal with members. Those more appropriate methods would be to - possibly through a newsletter, on the association website, or postings in the common areas, inform the members that it is their right to access public websites, identify where sex offenders live, and take their own measures to protect their families and loved ones. The sites have specific warnings about use of the information and I believe Boards can get into trouble by "misusing" the information. The information is geared toward allowing people who want to check the lists to take measures to protect their "own".

Certainly, once the members are receiving information about how to check for sex offenders in the neighborhood, there is a strong likelihood that a few or many will find out about the situation with the board officer's relative or any other residence in the neighborhood where a sex offender lives and adopt their own methods to "deal" with the situation, and it will likely become very uncomfortable for any of the residents in the homes housing the sex offenders or the neighbors. That is not something the Board can ?fix?.

So, what I am saying is that sweeping the information that there is a sex offender in the neighborhood under the rug does not seem the wise path to me, but neither does "taking up the charge" to chase the sex offender out of the neighborhood.

If you want more information about my thoughts on this subject, there is an article on the Guru website in the Articles section called ?Caught Between a Rock and a Hard Place?, and a blog written in 2006 discussing whether Megan?s List is a blessing or a curse.

Full post as published by California Condo & HOA Law on August 29, 2009 (boomark / email).

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