Throwing Away the Key: How Condominiums Can Keep Children Safe from Sex Offenders!

Published on: June 1, 2009

On July 29, 1994 seven year old Megan Kanka, a second grader in Hamilton, New Jersey, went for a bike ride with a friend in an otherwise unremarkable and quiet subdivision. Megan never came home. At first, Megan’s Mother thought that Megan had lost track of time chasing fireflies, as she was prone to do. Instead, Megan was kidnapped, raped and murdered by Jesse Timmendquas, a repeat violent sex offender who had just been released from prison and moved in across the street from Megan. Had Megan’s parents known the history of their new neighbor, Megan might be alive today.

Eighty-nine days after Megan’s horrific abduction, rape and murder, the State of New Jersey passed groundbreaking legislation that is now commonly referred to as Megan’s law. Megan’s law or some form of it has since been adopted in all fifty states and at the federal level. Most versions of the law impose registration requirements on sex offenders released from prison or psychiatric facilities and implements a three-tier system for classifying sex offenders according to their risk to the community, Tier I being not a substantial chance of re-offending, Tier 3 being a high likelihood of re-offending.

In Massachusetts, Megan’s Law is codified at G.L. c. 6 § 187C. It requires all persons convicted of a sex offense to register with the State and municipality in which they live and work. Failure to register is a separate felony offense. In Massachusetts, information about Tier 2 and Tier 3 sex offenders is available to the public at local police stations and through the Massachusetts sex offender registry board. Photographs, names, physical descriptions and home and work addresses of Tier 3 offenders can be searched by locality on the Massachusetts Sex Offender Board Website. The website is www.mass.gov.sorb. Information about Tier 2 sex offender’s home or place of business requires specific inquiry at the SORB or at your local police department. Tier 1 information remains unavailable to the public.

According to one source there are currently 8,104 registered and another 2,000 unregistered sex offenders living and/or working in Massachusetts and 1,500 registered sex offenders living and working in Rhode Island. According to statistics from the Federal Bureau of Justice, sex offenders are on average sentenced to 8 years in prison and serve only three years. More importantly, sex offenders are five times more likely to re-offend upon their release than other violent criminals.

Unfortunately, Megan’s law is not perfect. In the first instance it depends largely on sex offenders registering in the local community in which they live or work, and then residents obtaining the information and relaying it to others in the community, both of which often fail to occur. Currently, there are approximately 2,000 unregistered sex offenders living and/or working in Massachusetts, down from an astonishing 6,000 in 2003. However, recent budget cuts are crippling police monitoring and pre-release registration programs. One study reported that Megan’s law has not deterred repeat offenders, just made them easier to find.

Unfortunately, condominiums, which are often referred to as the last bastion of affordable housing in the Northeast, often tend to attract sex offenders. It is a simple matter of economics. Many condominium complexes provide cheaper housing alternatives. Offenders may not always own, they may rent. Family members may have a seasonal condominium in which they allow the sex offender to use following his release.

In 2005, residents of a Yarmouth based condominium were shocked to learn that a Level 3 sex offender convicted of assault with intent to rape and assault with a dangerous weapon 13 years earlier had been released from prison and had decided to resume life at their condominium. Those residents were equally shocked to learn from the police that there was not much they could do about it, other than monitoring and increasing patrols. In 2007 a condominium in Easton was the home of a dance teacher who was convicted of raping a 15-year-old student in a Taunton motel. At the time of his conviction he was charged with raping another dance student, which occurred in the victim’s mother’s condominium.

These are just two highly publicized examples. Situations like this present a classic dilemma for the condominium. Does a condominium wait until a sex offender is in their midst to take action or can they be proactive? The danger to a condominium is that a Court may be reluctant to remove a sex offender from a condominium just because he is a sex offender, absent some post release activity on the grounds of a condominium. After all, they have to live somewhere, so why not your condominium? The fact that our legal system is unwilling to “throw away the key” in the first instance, should be reason enough for condominiums to be proactive and not to rely upon the legal system to provide a solution once sex offenders are in our midst.

Condominiums and Homeowner Associations across the Country are banning sex offenders (Tier 2 and/or Tier 3) from living at their condominiums by carefully crafted Master Deed Amendments. They are doing so not only to protect their children but to protect their rapidly declining property values, out of fear that the presence of a sex offender in their midst would further impair their property values. While Master Deed Amendments can be expensive and time consuming, given that they typically require a ⅔ or ¾ approval of all unit owners, an amendment banning sex offenders to keep our children safe and preserve our property values would hardly seem controversial.

Interestingly, condominiums have a distinct advantage over single family homeowners in this regard, since it is the often criticized covenants and rules found in the Condominium Master Deed that provide the source for banning offenders. Single-family homeowners do not have this opportunity. Strangely, very few Massachusetts, Rhode Island or New Hampshire condominiums have enacted amendments banning sex offenders. Perhaps it is the pervasive feeling in the liberal northeast that such a ban would be unconstitutional, discriminatory or against public policy. While those are valid concerns, there has only been one reported legal opinion in the entire country addressing the enforceability of a sex offender restriction, and the restriction was upheld.

In that case, Mulligan v. Panther Valley Property Owners Association, 766 A2d 1186 (2001), the New Jersey Court upheld an association’s sex offender restriction. In Mulligan, the association had passed an amendment to their bylaws, which banned Tier 3 offenders from occupying (but not the right to owning). The New Jersey Supreme Court in upholding the ban, found: (1) that the restriction was applied equally to all residents in Panther Valley (Mulligan was not treated differently or relegated to a smaller potential home market than any other Panther Valley resident), (2) sex offenders were not a protected group for discrimination purposes, (3) sex offenders were not proven to be handicapped for discrimination purposes, and (4) sex offenders were not viewed as a large enough segment of the public (only 80 Tier 3 registrants out of 8.4 Million New Jersey residents) for purposes of infringing on Mulligan’s right to sell or lease her home.

However, the Mulligan court took pause regarding the public policy aspects of such a restriction. The court recognized that allowing such a restriction could lead to a segment of the State closing its doors to these offenders, thus confining them to a more narrow corridor of housing that would expose those within that corridor to a greater risk of harm than they might have otherwise had to confront simply because they are unable or unwilling to live in a protected neighborhood. Nevertheless, sex offenders have very few sympathizers, and even those who believe laws and covenants restrictions may go too far in addressing such offenders are hesitant to publicly express their concerns for fear of their own ostracism. The reality is sex offenders are generally not wealthy enough to pursue Court challenges of the type that occurred in Mulligan (who by the way was not a sex offender but a litigious lawyer resident), which may be why there is only one reported case in the entire country. Furthermore, sex offenders don’t typically like to call attention to themselves by filing lawsuits. Also non-profit legal programs (those that are left) usually find better ways to spend their limited resources than trying to force sex offenders upon condominiums.

Sex Offender restrictions are something every condominium association should strongly consider. As mentioned above, they have to be carefully crafted to avoid possible legal ramifications and complications. While that may take some doing, the resultant peace of mind and comfort to know that sex offenders are not allowed to live within your community seems worth it. After all, shouldn’t our children be able to lose track of time chasing fireflies, as Megan was prone to do.