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Univ. of Arkansas, Fayetteville

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Sunday, October 2, 2005

Covenants Against Sex Offenders

Common interest community covenants against registered sex offenders appear to be spreading like wildfire -- I've seen quite a few press reports about them in the past couple of months.  As far as I know, only one case has considered the validity of such a covenant, Mulligan v. Panther Valley Property Owners Assn., 766 A.2d 1186 (N.J. App. Div. 2001).

In Mulligan, the court rejected what essentially was a facial challenge to the covenant, but left open the possibility that an anti-sex-offender covenant might (or might not) be found to be invalid in a case with a more developed record if the plaintiff could show that "a large segment of the housing market [was] unavailable to one category of individual" or that "the Association performs quasi-municipal functions, such that its actions perhaps should be viewed as analogous to governmental actions in some regards."

Other than vague public policy/reasonableness grounds, I have a hard time thinking of a reason why these covenants might be invalid.  So far as I know, sex offenders aren't a suspect class and aren't disabled.  Beyond their validity or invalidity, though, these covenants present some other interesting issues.

One is potential liability for common interest community associations that fail to impose this type of restriction.  Some courts have held that community associations may be liable for failure to take steps to protect residents from criminal attack. See, e.g., Frances T. v. Village Green Owners Ass'n, 723 P.2d 573 (Cal. 1986).  It isn't hard to imagine a lawsuit against a community association for failure to impose a restriction on sex offenders.  Whether such a lawsuit would have merit is another issue entirely.

Another issue is enforcement -- I can't think of any other covenants that are enforceable today that would prevent a person from living in a particular community.  Many of the covenants that I have seen discussed in the press seem to bar the transfer of the property to a registered sex offender.  The Panther Valley covenant takes a different approach.  David Ramsey, who wrote the original Panther Valley covenant and who can probably claim to be the inventor of this type of covenant, was kind enough to provide me with the current version of the covenant and give me permission to post it here:

(a)                RESTRICTION AGAINST MEGAN’S LAW REGISTRANTS.

                                             i.                      No person required to register with a designated registering agency pursuant to N.J.S.A. 2C:7-3 and who, thereafter, is determined to be a Tier-2 or Tier-3 registrant pursuant to N.J.S.A. 2C:7-8(c)(3) (“Megan’s Law Registrant”), may permanently or temporarily reside in a Lot.  As used in this section “resides” means living in or possessing any portion of a Lot for more than 14 days out of any 30 consecutive-day period.

                                           ii.                      If, subsequent to the recording of this Declaration in the records of the Clerk of Morris County, a Megan’s Law Registrant resides in a Lot as a tenant, or under any other possessor interest, the Lot Owner must immediately cause the person to vacate the Lot and, if the person does not vacate the Lot within 30 days of the date the Lot Owner was notified by the Association of the presence of a Megan’s Law Registrant, then the Lot Owner will immediately commence eviction proceedings.  If the Lot Owner fails to commence the eviction proceeding within 30 days following the date the Lot Owner is required to do so and diligently pursue the eviction to conclusion, then the Association may act as attorney-in-fact for the Lot Owner and pursue the eviction action at the Lot Owner’s cost and expense.  If any action seeking eviction of a Tier-3 tenant does not result in a judgment of possession in favor of the Lot Owner, the Association may, but will not be obligated to, prosecute an appeal seeking the eviction of the tenant.  In the event the Association obtains a final judgment resulting in the eviction of the tenant the Lot Owner will be responsible for all reasonable fees and costs of the Association in prosecuting the appeal.

Each Lot Owner hereby appoints the Association as the Lot Owner’s attorney-in-fact for the purpose of commencing eviction proceedings, executing any and all documents pertaining to the proceedings or performing any or all responsibilities as may be required or necessary to be performed pursuant to this Paragraph “a” of the Association’s Use Restrictions. This power of attorney is expressly declared and acknowledged to run with the title of any and all Lots and will be binding upon the heirs, personal representatives, successors and assigns of the Lot Owner.

                                          iii.                     Any Lot Owner who, by virtue of residing in a Lot, has been notified by the Association that he is in violation of this Paragraph “a” of the Association’s Use Restrictions, must vacate the Lot within 90 days of receipt of the Association’s notice.  If the Lot Owner fails to vacate the Lot within 90 days, the Association may, in addition to all other remedies available to the Association, purchase the Lot at a purchase price equal to the average of two independent appraisals to be obtained by the Association, less the Association’s anticipated costs of selling the Lot, including, without limitation, brokerage fees, of not more than seven percent (7%) of the appraisal value, the cost of the appraisal, the realty transfer tax (based on the appraisal value), and other customary and incidental selling costs not in excess of one percent (1%) of the appraisal value.

                                         iv.                       The Association will not be liable to any Lot Owner or anyone occupying or visiting the ABC Community as the result of the Association’s failure to dispossess a Megan’s Law Registrant.

Two things are particularly notable about this covenant.  First, by limiting its scope to Tier 2 and Tier 3 sex offenders, the covenant is strengthened by the legislative determination made in enacting Megan's law that this type of sex offender has a high likelihood of recidivism.  Second, by focusing on the sex offender's right to live in the community rather than on the sex offender's right to purchase or lease in the community, the covenant (a) covers people who become sex offenders after they purchase or rent and (b) avoids the potentially very difficult task of unwinding a completed real estate transaction if the association learns of a sale to a registered sex offender after the sale has closed.  I don't know much about this subject, but an association trying to enforce a transaction-based covenant might have to look to pre-Shelley v. Kraemer cases enforcing (now invalid) covenants against selling to members of a particular racial, ethnic or religious group.

Comments are open for anything related to this type of covenant.  Are they a good idea?  Are they enforceable?  How will they work in practice?  [Our comment system is set up so that I have to approve comments, so there might be some delay in posting].

Ben Barros

http://lawprofessors.typepad.com/property/2005/10/covenants_again.html

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Comments

New Jersey provides for 3 tiers of sex offenders, and also provides a procedure for the offender to be "de-listed" if no additional crimes are committed for 15 years. However, a number of states (including mine, Missouri) have neither of these provisions. Hence, it is entirely possible that one conviction of a very young person for "statutory rape" will result in a lifetime obligation to register.

I have a young acquaintence, a rather naive young woman of 21, who found herself at a party with a young man, age 14, who was 6 feet tall, weighed about 180, and was quite aggressive sexually. They ended up having intercourse, and it is a matter of dispute who the "moving party" was. The young man's mother filed a complaint, and my young woman friend was convicted of statutory rape. She was given a suspended sentence, but the obligation to register as a sex offender was, by virtue of the conviction, imposed on her for the remainder of her life. Only a gubernatorial pardon would allow her to escape that obligation.

I mention this story only to suggest that, while the covenant in question may (or may not; I don't know) be well tailored to exclude only truly dangerous individuals, a thoughtless copying of the concept in other states could easily impose an additional burden on persons who, in any rational legal system, would not be required to register in the first place.

Posted by: Dale Whitman | Oct 3, 2005 9:00:31 AM

I think Dale's comment raises an important point. These covenants can be written to be very broad. Indeed, common interest communities might try to extend them to other types of criminal behavior.

Posted by: Ben Barros | Oct 3, 2005 9:01:45 AM

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