By Michael Fentress
Prior to my career as a Landlord-Tenant attorney, I represented the Department of Correction in actions seeking to keep the most dangerous sex offenders, or Sexually Dangerous Persons, in prison even after they had served and completed their criminal sentences. These “SDPs” as they are called, are civilly committed to a correction facility to ensure that those prisoners who were most likely to re-commit sex crimes remained behind bars and in treatment for their uncontrollable deviant desires. Each trial I conducted included a recitation of the horrible details of the sexual offenses these SDPs committed, the bulk of which were perpetrated on children. Their crimes were unforgivable, incomprehensible and outright heart-wrenching.
I thought I had successfully escaped having to deal with the sex offender population when I left the Department of Correction. I could not have been more mistaken! No sooner had I left the DOC than I was required to consider the impact such offenders have on my new client base— property management companies and landlords. I quickly learned that landlords struggle with many issues relating to sex offenders. Do landlords have a duty to actively identify whether a sex offender lives on their property? If so, what they can do about it? The purpose of this article is to consider these difficult issues.
To start, it is important to understand what it means to be a sex offender and what it means to be a sexually dangerous person. A sexually dangerous person is a type of sex offender who, because of uncontrolled or uncontrollable sexual desires, is likely to re-offend if not confined. SDPs are offenders who have committed repetitive and/or compulsive sex acts. In other words, SDPs have been convicted of more than one sex crime and/or the details of the sex crime suggest the SDP is suffering from some sort of mental condition or abnormality. A sex offender, on the other hand, is a person who has committed a sex crime. A sex crime can be as basic indecent exposure (think of the young college kid who decides public urination is ok) or as awful as rape. Because there is such a varying degree of sex offenses, under the Massachusetts General Laws, not all persons charged with sex offenses are SDPs and not all have to register with the same degree of detail as others, if at all. Level I offenders can register by mail and their information is not publicly available. Level II and III sex offenders have to register in person and provide more information about themselves, including photographs and up to date addresses. However, in order to be deemed a Level III sex offender, the Commonwealth must have proved that the offender has a high likelihood to re-offend. Aside from registration and probation conditions (if the offender is released and placed on lifetime parole, or some other form of probation), sex offenders are usually free to live anywhere they choose (including your property!).
The first issue is whether a landlord has a duty to determine whether any occupant is a sex-offender. The issue arises when, God forbid, you have an incident on your property involving a sex-offense and the victim claims you were negligent for not screening the tenant, who turned out to be a sex-offender. Currently, it does not appear to be the industry norm to screen using the Sex Offender Registry Board. Rather, most reasonable and prudent landlords employ a screening company to review prospective tenants for any criminal history. The results of these screens are thorough, comprehensive and would be helpful in any court action. In fact, these companies screen for more than just sex offenses and also search beyond Massachusetts for criminal involvement. Considering the availability and breadth of these services, I would recommend utilizing them to screen prospective tenants as opposed to using the Sex Offender Registry Board. Recall, not all information about sex offenders is public and the Board may provide little to no information concerning Level I and II Sex Offenders. Other than utilizing screening companies, landlords would have to complete public records requests with the local police departments to obtain information about sex offenders in their area, near their property or on their development.
Now that you have been informed of how to discover whether you have a sex offender on your property, the next consideration is how to remove such a person from your property. Unfortunately, your options may be limited. Once a landlord finds out a sex offender is on their property, either because they viewed the Sex Offender Registry Board, obtained information from the local police department, or were informed by a resident, their options usually depend on how the offender became an occupant of the apartment. (1) If the offender lied on your rental application or during any part of the rental application process, then you can proceed to evict the offender for fraud. (2) If you become aware of a sex offense that is committed by one of your tenants during the course of their tenancy, then you likely have the right to evict the tenant for material violation of their lease. While you should carefully review your lease, the right to evict the tenant will likely depend on whether the incident happened on the property, or near enough to the property that it would affect the other residents (arguably – any offense serious enough to result in this classification would be enough to evict).
A difficult issue arises when the sex offense happened prior to occupancy in your building and the resident did not lie on his application. In these cases, a landlord may have no ability to remove the offender at all. Unlike the scenarios above, where you have a tenant who commits fraud or a sex offense on or near the property, if you have a truthful tenant who committed a sex crime prior to occupying your apartment, there is no technical lease violation (as most leases do not prohibit a sex offenders from living at the property). To remedy this conundrum, a prudent step would be to ensure that your lease explicitly prohibits any registered sex offender from residing in your property. In fact, HUD recently adopted a regulation that prohibits occupancy by any lifetime registered sex offenders, so long as the person moved in after June 25, 2001.
Finally, there are many times when a sex offender enters the property as a guest of a lawful tenant. In such cases, you may want to consider seeking a restraining order barring that person from the property. The argument would be that a level III Sex Offender has been deemed by the Commonwealth to be a dangerous person at high risk to re-offend and who poses a risk to the public. Just like we would enjoin a tenant or guest of a tenant from bringing in a dangerous breed of dog on the property or even explosives, a Level III Sex Offender is dangerous, so dangerous that the State has determined the public safety interest is best served by publicly disseminating information about Level III Offenders. In many cases, we have obtained orders prohibiting such a person from entering the property. Even in cases where the court denies such a request, the mere fact that we sought the order would protect the owner from liability in the event the person, does, in fact, go on to cause harm. Naturally, as in all legal matters, our success is fact-sensitive, depending on the specific facts of the case, including underlying sex offense, the date of the conviction, and whether the guest has engaged in any disturbing behaviors.
So what is a landlord to do when a sex offender lands on his/her property?
Here are some suggestions:
- Perform a reasonable criminal background check. Whether it is through the State CORI system, a private company, or otherwise, screening for a criminal background will assist you in avoiding potential claims in the event of a criminal act by a resident.
- If you find there is a sex offender on the property, determine what rights you have to remove them. Whether they lied on their application or committed an act in violation of their lease will determine what rights you have.
- In cases where you do not have grounds to evict a sex offender, but have been informed by a resident that you have a sex offender on your property, you may consider notifying the resident of his/her right to seek information from the public records and take any appropriate, legal action. For example, the resident could seek a restraining order from a District Court if the resident believes this sex offender is a danger or, at the very least, the resident can take precautions to avoid contact with the sex offender. In any event, the onus would at least be placed on the complaining resident since the landlord would likely have not grounds to take any such action without some act by the offender.
Clearly, these are difficult issues for which an absolute legal answer is not always readily available. These cases tend to turn on the individual facts and circumstances. In some cases, legal action is not only appropriate but may be mandated. In others, there may be no relief available. What is clear, however, is that property owners and managers must carefully consider their responses when a sex offender enters their property. And, if ever there is a doubt, question, or concern about what steps you should or should not take, contact us for immediate assistance.