Condo Media - August 2016 - 28

NO Offense
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.

"An offender who
purchases a unit in
your community will
have all the ownership rights of any
other purchaser, 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."
-Matthew Gaines,
Associate, Marcus, Errico,
Emmer & Brooks

28

CONDOMEDIA

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) that an
offender is living in the community (see
related sidebar); 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
Condo Media - August 2016

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