Q. I was recently made aware that a sex offender has moved into my building. He moved into his girlfriend’s apartment. I made the board aware of this, and even gave them a printout from criminal justice. We have a lot of children living in our community. Does the board have a legal obligation to advise the shareholders that a sex offender lives in our building?
—Concerned for the Community
A. “Generally speaking an association has no clear legal duty to warn residents about known sexual predators living in the building,” says attorney Barry Kreisler of the Chicago firm Kreisler Law, P.C. “However, an association does have a duty to protect its residents from known dangers, especially if there is a reasonable likelihood of probable harm. It is almost a certainty that if the board is notified that a sexual predator is residing in the building, does nothing, and someone is later assaulted by the person, the association will be sued by the victim. The lawsuit would likely be under a negligence theory or for some breach of fiduciary duty theory. The case law is unclear at this point, but given the specific facts of a case, there is at least some risk in having such information and keeping silent about the same.
“Unfortunately, there is also possible liability to the association if it does warn residents about a sex offender’s occupation of the property. Some federal, state and local statutes impose penalties for the secondary dissemination of information publicly available through a sex offender registry website, if the dissemination is intended to or is likely to (and does) cause harassment or other harm to the predator. Further, certain federal statutes and some state and local statutes prohibit information obtained from a sex offender registry to be used to, among other things, deny housing – even though convicted criminals are not a protected class. Therefore, a board may not even be able to pass a bylaw prohibiting such an individual from owning a unit in the association.
“An association has no duty to monitor any sex offender registries and simple disclosure that a registered sex offender is residing in the building would likely be acceptable, and perhaps would be the best way to avoid liability from either side. In order to best navigate the competing liability issues involved, an association may do things such as issue general safety information to its residents, including a link to local sex offender registries and encourage residents to educate themselves.”