Q. I was recently made aware that a sex offender has moved into my building. He moved into his girlfriend’s apartment. I made the board aware of this, and even gave them a printout from criminal justice. We have a lot of children living in our community. Does the board have a legal obligation to advise the membership that an offender lives in our building?
—Very Worried Tenant
A. “This is an interesting question, but one that is more complex than one might think,” says attorney Sheila Van Duyne of the Van Duyne Law Group, based in Reno. “Here in Nevada, the law requires all those convicted of a crime against a child and all those classified as sex offenders to register a current address with local enforcement agencies. This information is then available to the public via a central repository website. The registration system is more commonly known as Megan's Law. The information is currently out there for the public and all association members to see. The question then becomes, does an association's board of directors have an additional duty to tell its membership when a sex offender moves into a building, either as a tenant or an owner?
“While many people may wish an offender who moves into their association to immediately move back out, getting such an offender to move may not be within the power of the association's board of directors. The law in this area is not very clear-cut. Some state courts do allow HOA boards to restrict ownership and/or to publish information about sex offenders to their membership, but many do not. Some states require and association to rewrite the governing documents if they wish to prevent sexual offenders to reside in the association and/or to distribute information regarding such to the membership. Such a rewrite would focus on the more typical “healthy/safety” language often contained within a set of CC&Rs.
“There is an inherent conflict in this area of laws. This is because there are prohibitions against the harassment of sexual offenders who are required to register, and then there is some new case law holding that an association board must look out for and protect their members. It is hard for a board to publish specific information about a sexual offender and/or prevent the offender from moving into the association without opening the association to a legal claim of harassment by such offender. No Nevada statute or law deals with whether an HOA can use the website to either screen out owners or tenants in their association. If they do so – and even if they revise their CC&Rs to allow for it – it would most likely trigger litigation, including a possible Fair Housing Claim if [the offender] could prove some sort of mental 'handicap.' The Nevada Supreme Court has also not given us any legal rulings related to those issues.
“I would recommend an HOA board to avoid getting drawn to a legal battle that might wind up at the Supreme Court. I would not suggest a board rewrite its documents to give them the arguable authority to either disseminate information and/or prevent sexual offenders from moving into the association because the legality of such documents might be up for debate within the courts. The easiest and simplest way for an HOA board to handle this issue would be for the association to disseminate a list of safety resources, which includes the Megan’s Law website information in the sales packet and in other annual mailings sent to each homeowner. This way, the association would insulate itself from protracted legal battles that might follow any targeting communications to its membership drawing attending to sexual offenders.”