Associations generally have the right to regulate their communities. In Washington, this probably includes the right to ban registered sex offenders and other persons with criminal history from living in the community. However, an association’s right to evict existing occupants based on their status as a sex offender is less clear. In addition, associations considering a covenant banning occupants with criminal history must consider several sources of potential liability.
Banning prospective occupants with sex offender status and other criminal history: The Fair Housing Act
The federal Fair Housing Act prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status, and disability. State and local enforcement agencies may extend this protection to other classes.
No federal, state, or local protections applicable to Washington communities specifically prohibit discrimination based on an individual’s criminal history or status as a sex offender. No Washington court has ruled on the issue of whether an association may ban such individuals from moving into their communities.
Given the current state of the law in Washington, it appears an association may ban registered sex offenders or other criminals from residing in their community (If restricting criminals, consider defining what level of criminal would be prohibited. Convicted felons? Persons with a history of violent crimes?). Because restrictions on use or occupancy of a unit or lot must be in the community’s Declaration, a provision prohibiting registered sex offenders or others with criminal history would have to be in the Declaration (or the Declaration would have to be amended in accordance with the association’s Governing Documents and state law).
Association membership
No Washington court has considered whether an association has any recourse when a registered sex offender or person with other criminal history purchases a home in the community. However, it would be unlikely that an association could either force a sale of the property or block the new owner’s membership in the association.
Eviction of existing tenants with sex offender status or other criminal history
In at least one Washington case, a registered sex offender was evicted from low-income housing operated by a religious entity landlord that had been unaware of the tenant’s sex offender status at the time of rental. If a court were to apply the rationale used in that case, a tenant’s failure to disclose criminal history might be grounds for eviction if, in the interest of resident safety, the tenant’s landlord enacted a rule banning residents with certain criminal history.
Potential liability
If an association decides to impose a residential ban on registered sex offenders or persons with other criminal history, there are several risks to consider. First, the covenant may give residents a false sense of security and put them at additional risk. Although an association has no general duty to control or protect residents from criminals, this promise of safety may give rise to a greater duty to protect. In addition, if an association enacts a ban against registered sex offenders, an offender may challenge the ban in court, subjecting the association to litigation costs.
On the other hand, if an association allows registered sex offenders or persons with other criminal history to live in the community, it is well advised to consider neighborhood safety issues, including protection of the sex offender from potential harassment.
Other considerations
Real estate sales require that a seller provide buyers notice that information relating to registered sex offenders can be obtained from local law enforcement. This is not part of the association’s resale certificate. Information on registered sex offenders may be found online at:
- A) The national sex offender site: http://www.nsopw.gov/Core/Portal.aspx
- B) The Washington state site: http://www.icrimewatch.net/washington.php
Information obtained through these websites may not be used to threaten, harass, or intimidate anyone.
Registered sex offenders convicted of certain crimes may not live within 880 feet of the facilities and grounds of a public or private school. Certain offenders may also be prohibited from entering places like the neighborhood pool, playground, park, community center, and the like, if written notice is provided to the offender.
If you have questions about these issues, feel free to leave a comment or contact us directly.
