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Sex Offender Status

Last month Senator Schumer proposed legislation designed to protect those of us who live in apartment buildings from sex offender supers by requiring them to disclose their status to residents and obtain written consent to possess a key.  The proposal, which would potentially make boards, landlords and managing companies liable if such consent wasn’t obtained, doesn’t seem to have gained traction because the perception is that the current system of vetting building employees before hire appears generally effective.

But it got me thinking: What if a sex offender lives next door?  Is there anything you can do?  The answer isn’t as simple as you might imagine.

Say you just bought an apartment and found out that the guy down the hall is a sex offender. Can you go after the seller for not telling you? NO.  That’s what a couple tried after they discovered that a sex offender lived in the house across the street from the one they’d just bought. They sued the seller and the broker for fraudulently concealing the fact, telling them the house was a good place to raise their children, but got nowhere because with diligence they could have uncovered the neighbor’s status on their own.

That’s not necessarily the end of the inquiry in a co-op where the board has a fiduciary duty to act in the best interests of owners, a responsibility that arguably would be breached by approving the admission of a sex offender who could put residents at risk. But what about condos where boards cannot reject would-be buyers, and only have a right of first refusal to purchase the apartment? Would the board be required to buy the unit to block the offender’s admission?

The issue is complicated by the fact that under the Roommate Law, which is applicable to co-ops, landlords can’t evict a resident for being a sex offender, though this hasn’t prevented those concerned from solving the problem on their own terms. Take the case of a family with three young daughters that signed a lease for an apartment and took occupancy, only to have a sex offender move in next door several months later. Even though the landlord refused the family’s request to terminate the lease early, it moved out. Yes, it’s true the landlord can’t kick out the sex offender under the law, the court said, but any lease that doesn’t give tenants an out under these circumstances to protect their kids, is unconscionable and in violation of the implicit covenant of good faith.

But the landlord was able to evict a sex offender in another building, not on the grounds of his status, but because the tenant with whom he lived had lied on her lease  application, saying she’d be the only occupant of the unit.  That untruthful statement allowed the landlord to terminate the lease, removing both.

And Federal law  prohibits anyone subject to lifetime registration as a sex offender under state law from residing in public housing, overriding the protection of the Roommate Law.

But if you live in High Rise Society, better check out your neighbor before you move in.

For more, see:

  • Glazer v. LoPreste, 278 A.D.2d 198 (2d Dept. 2000) (Seller not liable for failing to tell buyer that neighbor was sex offender.)
  • Knudsen v. Lax, 17 Misc.3d 350 (City Ct. Watertown 2007) (Tenant can break lease when sex offender moves in next door.)
  • Mayes v .Hernandez, 17 Misc.3d 1140(A) (Sup. Ct. N.Y. Co. 2007) (Federal regulations prohibit sex offenders from residing in public housing.)

 

To access these cases, click here, then on Continue, and  enter case citation.

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