Q&A: Like it or not, sex offenders aren’t prohibited from living in homeowner associations

Question: Our homeowner association’s board of directors is highly focused on keeping our development safe. Every board meeting they inform attendees of any crime in our area and any pedophiles that have moved to our neighborhood. Recently a registered pedophile purchased a condo in our development and we learned of this at the board meeting. The board publishes names and addresses of all pedophiles in the minutes so that owners can be aware. Is that legal?

And are pedophiles allowed to purchase property in homeowner associations? This association has lots of children that live here and many of us have toddler grandchildren that visit us. What can we do about having this pedophile move out? If he moves out, can he still own the condo and go to the meetings?

Answer: Your board is not prohibited from including sex offender information in its minutes. Megan’s Law is a federal law that permits authorities to release various details about registered sex offenders. The board probably obtained the information it is sharing from an online database that tracks the names, pictures, details of conviction and addresses of registered individuals made public under the law. Penal Code Section 290.03 allows the board to pass that information along to owners as long as it merely restates factual details.

No law prohibits a registered sex offender from purchasing property in a homeowner association, but neither is there a law that prevents owners from declining to sell to these individuals if they happen to be aware of their inclusion on the database. A registered sex offender is not afforded special protections under the Fair Housing Act in the same way that women, the elderly and other “protected classes” are, according to published opinion No. 05-301 of the California attorney general.

However, the law is tricky. If a seller were to refuse to sell to a registered sex offender solely on the basis of that person’s inclusion on the state database — and such a motivation could be proven — that would be a violation of California Penal Code section 290.039(j). Violations of this provision may entitle the registered individual to damages and payment of their attorney’s fees.

In any case, neither you nor the association can force this new owner to move, provided that he is not violating any conditions of his status by living in his unit. Registered sex offenders have various restrictions on where they can live and how far they must be from parks, schools and day-care services — but no law prevents a registered offender from living next to or near children. Offenders must also notify the authorities whenever they move, which probably means that his current residence location has been approved.

But if you or the board still think that this person has moved into your development in violation of California or federal law, then consult with an attorney to review all guidelines and restrictions for sex offender housing. For example, it is possible that someone in your association is operating a licensed day-care center that was not considered when granting the sex offender housing, or that your community includes a public park that was not officially recognized. Even if this person were forced to move, however, he would not be prohibited from owning the unit as an investment property and attending board meetings.

Remember, though, that while boards are encouraged to share information with owners that may be relevant to their investment in the association, the dissemination of information on the sex offender database is not an excuse for directors or owners to take the law into their own hands. Indeed, the California Legislature was cognizant of the possibility of misuse of the database to harass or seek retribution against sex offenders.

Accordingly, use of the database information to harass a sex offender could result in a misdemeanor conviction subjecting the violator to a fine of $10,000 to $50,000.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com

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