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Innocence Lost

“Our Main Priority was to protect the children,” says Mike Irelan, president of the association.  “People let their children go there without adult supervision.  Our main interest was to protect the kids.” 

As its first step, the board called a meeting of homeowners, where sentiment for a ban ran strong.  “Having a background in law enforcement, I knew we had to walk carefully to protect other peoples rights, ” Irelan says.  “They wanted to ban anybody who had a drug offense or any kind of conviction.  I knew that couldn’t happen.”

 The ban ultimately passed with 78% of the homeowners’ votes. 

Blame television programs that shine the spotlight on pedophiles or the increasing awareness of online sex offender registries.  Whatever the reason, homeowners are more aware of who is living in their neighborhood – and the presence of a convicted sex offender next door can be unsettling, to say the least. 

Residents demanding such bans often argue they’re needed to protect the residents’ safety and maintain property values.  A sex offender living in a community raises ongoing concern among parents and others, who may feel compelled to limit outdoor activities. 

As a result, some community associations are choosing to bar sex offenders from moving in.  But there are many things to consider before enacting a ban. While the few court rulings so far on the issue appear to support associations’ attempts to restrict sex offenders, case law is far from settled.  Associations that adopt a ban must prepare for the possibility of a long and expensive court challenge.  Also, most courts won’t enforce a ban retroactively.  In the Greenwood example, the sex offender lived in the sister subdivision. 

Are such bans Legal?  The classic legal answer is maybe.  By purchasing a property within a community bound by covenants, the owners agree to follow legally binding covenants and restrictions on the use of the property within the development.  Likewise, the homeowners can usually control or amend these restrictions as they desire for their mutual benefit.  Most covenants can be changed or amended by a vote of the association members.  Therefore, if the members want to pass a restriction banning sex offenders, it can be done.  But enforcement of such a restriction may encounter other legal hurdles. 

Equal protection. There are no federal or state laws that directly prohibit an association from passing a sex offender restriction.  However, the 14th Amendment to the U.S. Constitution prohibits the denial of equal protection of the law by any state.  While a community association isn’t a state entity, the 14th Amendment could be used to argue to block courts’ ability to enforce the restriction.  However, the courts so far have limited such review to restrictions involving legally protected classes, such as race or age.  Sex offenders aren’t a protected class. 

Unreasonable restraint. A sex offender ban should prohibit residency within the neighborhood, not ownership.  By focusing on residency, the restriction is directed at the use of the property, not who owns it.  Therefore, a sex offender is not prevented from owning a home in the community, but is prohibited from living there.  Nevertheless, courts may consider a ban on sex offenders as being in essence, a ban from purchasing a home within a subdivision.  Then, someone could argue that such a limitation is an unreasonable restraint on the individual’s right to own property.  Generally, the courts have held that a restraint on land is unreasonable if it is unlimited in duration, affects a large number of people and gives the association unlimited power to restrict prospective buyers.

As a result, a sex offender restriction should not grant the association the power to determine on a case-by-case basis which sex offenders it will allow to live in the neighborhood.  Instead, it should exclude all registered offenders or all offenders in a particular tier or class.  That may avoid the unreasonable restrictions that appear to trouble most courts.  And possibly more important, the restraint only applies to a small number of people- registered sex offenders. 

Before restricting sex offenders, association boards should review the practical implications of doing so.  These include:  False security, Cost, Community Support, Liability, Proper Procedures, Implementation, and Media attention. 

As always, consult your associations attorney to discuss the options and risks involved with any change to your governing documents.

by Scott A. Tanner 

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