COURT HOLDS THAT CONDOMINIUM TRUST MIGHT HAVE LEGAL OBLIGATION TO NOTIFY OWNERS ABOUT THE EXISTENCE OF SEX OFFENDERS LIVING AT CONDOMINIUMS AND LAIBILITY FOR FAILING TO DO SO

Published on: July 20, 2018

MEEB has repeatedly advised condominium associations to adopt amendments barring Level 3 sex offenders from being able to live within a condominium. There is case law out of New Jersey upholding a prohibition of Level 3 sex offenders. MEEB believes that such a prohibition would be upheld in Massachusetts, as Level 3 sex offenders are not a protected class and that the protection of women and children in condominiums is a more legitimate concern. While some condominium associations have proceeded with a sex offender ban, many have been reticent to do so. That may change based on a recent trial court decision.

A Massachusetts Superior Court Judge has denied a Condominium Trust’s request to be dismissed from a lawsuit brought by the estate of a man who was killed in his condominium unit with a baseball bat by a Level 3 sex offender. According to the lawsuit, on March 23, 2012, John Dacey Looney, a tenant in a condo in a Yarmouthport condominium assaulted the victim and a female companion after they rebuffed Dacey Looney’s invitation to “hang out.”

Dacey Looney’s status as a registered Level 3 sex offender stemmed from a 1992 conviction for an attempted rape in which he stabbed the victim in her arm. At the time, Dacey Looney had been on probation for another attempted rape from the mid-1980s. Dacey Looney, who allegedly suffers from paranoid schizophrenia, had moved into the condo — which was owned by a relative in 2005. The deal he had with his relative, who did not live on site, was that Dacey Looney would take care of their elderly father, contribute whatever money he could toward household expenses, and keep up his psychotherapeutic treatment regimen, which included regular appointments with a therapist and medication, according to the plaintiff’s complaint.

The Condominium Trust distributed letters advising residents of Dacey Looney’s arrival and sex offender status in December 2005 and January 2006. The crux of the victim’s case against the Condominium Trust is that not only did it discontinue its notifications, but it actively worked against others’ efforts to raise awareness of Dacey Looney’s presence. The Condominium Trust allegedly refused requests by the Yarmouth Police Department and residents to post notices in the complex’s community post office and tore down notices and photos of Dacey Looney that residents had posted. Allegedly, they did so out of fear that posting the notices would impact real estate values and brokers’ willingness to show units in the complex.

 

Continuing questions in the case include whether Looney disclosed his Level 3 sex offender status to the victim and whether the Condominium Trust was also concerned about discriminating against Looney due to his alleged mental illness. In any event, the Court denied the Condominium Trust’s attempt to have the lawsuit dismissed and it will now head to trial absent some type of settlement.

 

As to the Condominium Trust’s motion for dismissal, Superior Court Judge Gregg J. Pasquale did not issue a full decision, writing only that, “After hearing, a genuine issue of fact exists warranting a trial.

 

In light of this decision, MEEB recommends that all Massachusetts, Rhode Island and New Hampshire condominiums attempt to amend their Master Deed to prohibit Level 3 sex offenders from residing at their condominium. This case illustrates the difficulty inherent with having a Level 3 sex offender within a condominium, including the possibility for imposing substantial liability on a condominium for its failure to act and warn. The amendment proposed by MEEB would prohibit residency of any Level 3 sex offender and allow for the imposition of fines and attorney fees incurred in any Court proceedings seeking to evict registered sex offenders. While it may involve a heightened degree of duty and responsibility for a condominium trust to enforce, this case illustrates what can happen if even minimal measures are not taken without an amendment. If there is a possible duty to warn and possible liability for failure to warn, why have sex offenders on the property, if it can be avoided. More importantly, the purpose of MEEB’s sex-offender amendment is the protection of women and children living within condominiums. Because MEEB has developed a standard sex offender amendment (based in part of on the famous New Jersey case) we offer it at a flat fee. While most condominiums will require between 51% to 75% for passage of a sex offender amendment, MEEB has found that passage is not typically controversial and is often welcome when proposed given the safety and security concerns it attempts to protect. This is one of those instances where the imposition of restrictions in the condominium setting can actually be more beneficial to owners of single family homes.

If you would like to discuss this article or adoption of a sex offender amendment please contact Ed Allcock at eallcock@meeb.com.

All of MEEB’s attorneys are familiar with this law and this proposed amendment and are equally available to discuss the same with you.