Megan’s Law was passed by Congress in 1996 as an amendment to the Jacob Wetterling Crimes Against Children’s Act.  As a result of Megan’s Law, every state and the District of Columbia have established mandatory sex offender registries.  Although the details vary from jurisdiction to jurisdiction, these initiatives require sex offenders to register with state or local law enforcement authorities after their release from incarceration.

The intent behind these laws is to provide ordinary citizens with the ability to keep themselves and their families safe by providing access to information about sex offenders who live nearby.  A number of states have placed their sex offender registries online so that anyone with Internet access can search the registry to see if there are any sex offenders living nearby.  These initiatives have not been without criticism.  Some civil liberties groups have expressed concern about the potential for invasion of privacy, as well as harassment of those listed on a sex offender registry.  Many have also expressed concern that some of the crimes that require registration may fall outside of what is traditionally considered a sex crime and will require many individuals to register who might not really pose a threat to society (i.e., a 17 year old male who had sex with his 16 year old girlfriend).

These developments pose tough issues for real estate professionals, especially residential apartment owners and managers.  These issues include (1) what sort of tenant screening procedures are legal and appropriate to weed out sex offenders who apply for apartments; (2) what kind of obligation an apartment owner or manager has to notify residents if a registered sex offender is discovered to be living in an apartment community; (3) whether a tenant can be evicted if it is discovered that they are a registered sex offender. 

Unfortunately, there are no easy answers to these issues.  Few states place specific requirements on property owners or managers.  But that does not end the analysis.  On the one hand, apartment owners and managers do not want to face possible liability (or negative PR!) from innocent residents if a registered sex offender assaults someone in their community.  On the other hand, no one wants to have to litigate with a registered sex offender or some state or federal agency if a claim is made that the rights of a sex offender have been violated.  As crazy as that sounds, it could happen.  For example, it is currently illegal in California and New Jersey to deny housing to a registered sex offender due to their registration status.  But on the other hand, under Federal regulations, federally subsidized housing projects cannot rent to certain registered sex offenders!  So, it’s easy to see just how confusing and difficult these issues can be.

To help avoid potential liability to either registered sex offenders or innocent citizens, it is important that real estate professionals avoid “knee jerk” reactions and “cookie cutter” approaches to these issues.  Relevant privacy and civil rights laws should be examined and a complete review of lease applications and documents, insurance coverage, neighborhood demographics, and business goals and strategies should be undertaken to assist in developing a comprehensive – and legal – strategy to effectively deal with these issues.