DISCLOSING THE UNSPEAKABLE –
Duty of an Association to Alert Members to Known Sex Offenders

In my practice I have had several clients ask what they can and should say when they discover that a person with a history of criminal convictions for sex offenses moves into a community. The questions asked include whether the association must disclose the presence of known sex offenders, what liability exists if it does not, whether it can disclose them if they are not required to, and what the liabilities are if they do. These questions come up more and more frequently as criminal histories and sex offender databases become more available to the public. So, what must you say, and what can you say?

Texas, like many states, has adopted a version of “Megan’s Law”, which requires that sex offenders register with local authorities and that local authorities notify the public of the presence of sex offenders in their midst. See Chapter 62, Tex. Code Crim. Proc. There are extensive requirements with respect to who must register, with whom they must register, where they must register, and what forms of notice will be given by local authorities, including, but not limited, to law enforcement. The law stops short of imposing a disclosure requirement with respect to owners, builders, sellers, or lessors of single-family residential property, or their brokers, sales persons, or agents. In fact, the law states there is no such duty.

Property owners' associations are not usually owners, builders, sellers or lessors of real estate, but this law may apply to associations because associations have disclosure requirements in connection with resales, and may therefore be considered the seller's "representative". If the Association is a representative then this law provides protection if disclosure is not made. This means that the Association is not required to disclose the presence of known sex offenders as part of a resale.

Furthermore, if the association is not the owner of the buildings where the known sex offenders reside, or the places they go, then it has no duty to disclose a potential risk on property over which it has no control. This means that an association does not have a duty to disclose the presence of known sex offenders to the rest of the community if that person simply lives in the neighborhood.

This rule may be different in situations like condominiums, or subdivisions where the association may own common areas, because assaults might occur on association-owned property (such as laundry rooms, swimming pools or greenbelts). In those situations, the association, as the land owner, has a duty to warn of or prevent foreseeable intentionally criminal conduct of third parties. If the offender is known and is considered to be a risk, the association might have a duty. The question is whether the facts of each situation make it reasonably likely that an attack might take place. The more dangerous the offender, and/or the more the common areas provide a haven for would-be offenders, the greater the risk. Each case must be evaluated on its own facts. This is one area where there could be a duty to disclose. If in doubt consult the association's attorney with the facts of your particular case.

The identity and address of each registered sex offender is publicly-available information. Associations can remind their owners of how to obtain that information by listing the sources in association communications, if the board of directors for that association decides it wants to do so. They can even copy and distribute that information, if they want to. There is no liability for simply repeating information that is a matter of public record. However, to the extent additional information not in the public records is added, care should be taken that that information does not falsely state facts that damage a person's reputation.

In summary, there can be a duty to disclose a known sex offender to the community if that person is foreseeably a threat while on association grounds. Otherwise, disclosure is not required. Voluntary disclosure of public records is permissible.

Tom L. Newton, Jr., Attorney at Law