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Saturday, August 27, 2016
August 2016 View Previous Magazine Features

No Offense
By: Nena Groskind

Condominium residents, who famously don’t agree on many things, would almost certainly agree that they’d rather not have a convicted sex offender as a neighbor. New Fair Housing guidance issued by the Department of Housing and Urban Development (HUD) may restrict their ability to keep offenders out of their communities.
The guidance specifically limits the use of criminal background checks as a basis for selecting prospective housing residents. Although the rules are aimed primarily at rental housing owners, they have implications for condominium communities, which, like all housing providers, must comply with Fair Housing requirements barring discrimination against protected segments of the population.
HUD’s concern is that because a disproportionate number of minorities have criminal records, a blanket policy rejecting them as residents would have a “disparate” impact on a protected class, in violation of the Fair Housing Act.

Not a Burning Issue
If your initial reaction to this is a yawn, you probably aren’t alone. Sex offenders are not currently a hot concern – or even a particularly tepid one – for most community associations. But the question arises frequently enough to have registered on the radar screens of at least some condominium attorneys. Matthew Gaines, an associate at Marcus, Errico, Emmer & Brooks, says he fields several calls every year from association clients who have either discovered an offender living in the community or are wondering how to prevent that possibility.
Of the half-a-dozen association managers we surveyed, Douglas Thayer, president of Thayer & Associates, Inc., AMO, was the only one who had dealt with the sex offender issue: One of his association clients discovered a ‘Level 3’ offender living in the community. (The Sex offender Registry in Massachusetts and most states lists individuals based on the nature of their offense, with Level 3 being the most serious and Level 1 the least. The names of Level 1 offenders aren’t typically disclosed to the public.). Because the offender was a unit owner, Thayer says, the association’s attorney advised the board that “there wasn’t much it could do.”
“It is very murky water for boards,” Gary Daddario, a partner in Winer & Bennett, LLP, agrees. “Board members who take their role seriously, feel a natural and instinctive desire to protect the community,” he notes. But they also have to recognize liability risks on both sides of the issue: If the board fails to act and an offender harms someone, the association would likely be sued for negligence. On the other hand, while sex offenders aren’t a “protected class” under anti-discrimination laws, they are not without rights to privacy and other protections, and might sue if those rights are violated.
“An offender who purchases a unit in your community will have all the ownership rights of any other purchaser,” Gaines notes, “and you will have no more cause for evicting him or her than you would for evicting any neighbor you don’t like for any reason.”
If the offender is a tenant renting the unit from an owner, the board might order the owner to evict him/her, but that could trigger legal dominoes – the tenant sues the owner who sues the board – hardly a desirable scenario for the association.

Options for Associations
As a practical matter, unless they want to ignore the situation (probably not the best idea), associations have two options: Notify owners (carefully) –see related advice below - that an offender is living in the community or deal with the issue proactively and enact a bylaw amendment barring convicted sex offenders before the problem arises.
Gaines recommends the proactive approach. A policy barring offenders will discourage them from moving in; adopting a ban after an offender has moved into the community “will be closing the barn door too late,” he says, “because you won’t be able to enforce it retroactively.”
One argument against a ban, Thayer suggests, is the difficulty of securing the super-majority vote required to approve a bylaw amendment. “It’s hard to get 67 percent of owners to agree to even the most sensible bylaw amendment,” he observes. “Even if you propose a bylaw giving money away, owners may not approve it.”
Amendments banning sex offenders may be an exception. It is hard to imagine that many owners would argue in favor of opening their doors to convicted offenders, or oppose a bylaw barring them. While associations can’t prohibit offenders or anyone else from purchasing a unit in their community, Gaines notes, they can enforce a policy prohibiting offenders from residing there – a step many associations, although far from an overwhelming number of them, have taken.
These bans have to be worded carefully, Gaines cautions, taking into account, among other factors, HUD’s new guidance on the use of criminal background checks. “If not crafted carefully,” he says, “these bylaws could stumble over HUD’s policy.”

Bans Can Pass Muster
The guidance doesn’t preclude housing providers from including a criminal record in their selection criteria for residents, but it does require them to consider whether their selection process might have a “disparate” discriminatory impact on a protected class. If so, the guidance says, providers must demonstrate that the policy is necessary to achieve “a substantial, legitimate, nondiscriminatory” interest that could not be achieved through other, less discriminatory means.
A policy banning offenders satisfies those general requirements, Gaines believes: “There is no evidence that sex offenders are disproportionately minorities,” he notes, and the ban achieves a legitimate association interest (protecting residents from sex offenders that could not be achieved through other means.
HUD makes it clear that a blanket policy barring anyone with a criminal record of any kind would not pass muster; the guidance requires a nuanced evaluation that distinguishes between behaviors that pose a serious risk to safety or property and those that do not. Bylaws barring sex offenders can meet this requirement as well, Gaines suggests, because they typically reference the state sex offender registry, which classifies offenders according to the seriousness of the crimes they committed.
But the HUD policy also requires housing providers to look beyond a criminal record and consider “relevant mitigating information” surrounding it that would affect the current level of risk – when the crime was committed, for example, and the individual’s behavior since. “Someone who committed a crime 25 years ago and has been out of prison and out of trouble for 15 years arguably poses less of a risk than someone convicted three years ago and released last month,” Gaines suggests. Most association bylaws don’t consider these factors, he notes, “but HUD’s guidance suggests that they should.”
He recommends wording specifying that the ban applies to offenses committed a specified number of years ago, or to convicted offenders who have been out of prison and/or out of trouble for a certain amount of time since they were convicted or released from prison. Establishing longer time frames for more serious (Level 3) offenses “would be another way of demonstrating the nuanced distinctions” HUD’s guidance encourages, Gaines suggests.

Mixed Messages from the Courts
However carefully a ban is worded, associations have to consider the possibility that someone will challenge it. There haven’t been many challenges yet, and court decisions on them have been mixed.
• In what appears to be the only appellate level decision considering a condominium association’s policy barring sex offenders – (Mulligan v. Panther Valley Property Owners Association) a New Jersey court rejected the ban. But the decision was inconclusive, Gaines notes, because the appeals court found that the lower court lacked sufficient evidence to consider key public policy questions the appeals court said should be weighed – specifically, whether widespread adoption of restrictions like this one “would severely and unreasonably restrict the residency options of offenders who have served their time and been released from prison,” and would unfairly increase the risk of harm to populations unable to live in communities where the offenders are barred.

• In a Texas case (Whipple, et al v. Valley View Village Condominium Homeowners Association), a sex offender and his wife sued the association when it said he could not occupy the unit owned by his wife. The case was ultimately settled out of court, but their argument – that the ban violated Whipple’s constitutional rights and interfered illegally with his right to buy and sell property – has cropped up in other challenges, among them:

 The Georgia Supreme Court ruled (in Mann v. Georgia Department of Corrections) that a local ordinance barring offenders from living within 1000 feet of a child care facility, church, school or “other areas where minors congregate” constituted an unconstitutional taking of their property, because offenders might be “repeatedly uprooted and forced to abandon their homes.”

 A three-judge panel of the New Jersey Appeals Court ruled similarly that municipalities in that state can’t prohibit offenders from living near playgrounds, day care centers, etc. because these restrictions “interfere with and frustrate” efforts to monitor offenders and reintegrate them into society after they have been released from prison.

 The California Supreme Court also found a voter initiative restricting where offenders can live unconstitutional, because it “greatly increased the incidence of homelessness among them and hindered their access to medical treatment….and other rehabilitative social services available to all parolees…while further hampering [efforts to supervise and rehabilitate them]….and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.”

An ordinance adopted recently by the City of Lynn barring offenders from living within 1000 feet of schools or parks in the community seems notably less concerned about their rights, but the measure does exempt from the restriction offenders who established their residence before the ordinance became effective and those living with “a person related by blood or marriage…”
It is difficult to know whether these decisions represent “a trickle or a trend,” Gaines says, noting that there are also examples of decisions pointing in the opposite direction: For example, a Colorado Superior Court recently upheld an ordinance restricting residency options for offenders, even though it essentially closed 99 percent of the community to them.
The civil rights activists who are challenging these restrictions are arguing that everyone, including sex offenders, has to live someplace. But that doesn’t necessarily mean that they must be allowed to live in condominium communities, Gaines contends. “The legal challenges and the new HUD guidance certainly raise questions associations must consider,” he agrees. “But if association bylaw amendments barring occupancy by offenders are well-drafted and narrowly targeted, I think they will be upheld.”
Whether that will continue to be true in the future, he cautions, “will depend on how HUD and the courts answer all of these legal and public policy questions in the challenges to come.”

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