These days it appears that everyone is concerned about crime, safety and how to protect oneself. Although with a few limited exceptions these concerns are not the responsibility of condominium associations, we are frequently asked if an association can amend their governing documents to prohibit sex offenders from moving into the community, whether as an owner or a tenant. It has always been our position, even though there is no law in Massachusetts on the topic, that associations might experience issues if they enacted such a restriction. While the concerns are centered on enforceability and possible consequences if a sex offender did manage to occupy a unit despite such a prohibition, a new appellate case from Pennsylvania, Lake Naomi Club, Inc. et al v. Eric Rosado et al. has held that such a restriction is unenforceable. What is troubling about this case is not that it held the restriction unenforceable…it is the court’s reasoning that is alarming for private communities.
The facts of the case are straightforward. The Lake Naomi Club, Inc, owners of all common areas and facilities within the Lake Naomi planned community, (a private planned community) and the Pocono Pines Community Association, Inc. (the homeowners’ association for deeded property owners in the Lake Naomi community) in Monroe County, Pennsylvania had a 2016 restrictive covenant prohibiting homeowners and residents who were Tier III sex offenders. When the association tried to enforce the restriction by prohibiting a Tier Three sex offender from returning to his home in the community he refused to vacate. Accordingly, the association filed suit in February of 2019. While acknowledging safety concerns, the court held that there were safeguards already in existence in Pennsylvania’s Sex Offender Registry which notified the public when certain sex offenders resided in their neighborhood. The Pennsylvania Court, in its 2011 decision in Fross v. County of Alleghany , had voided a county ordinance which sought to bar registered sex offenders from living within 2500 feet of schools and other locations where children were often present. Lake Naomi distinguished their case from Fross as Fross involved a county ordinance and not a private community regulation. Notwithstanding this argument, the court held that private communities must adhere to the same laws as municipal governments. In light of the state legislature’s intent when it passed Megan’s law in Pennsylvania, the private restriction too must fail as one of the purposes of Megan’s law was to protect the public while allowing offenders a meaningful opportunity to return to society.
Regardless of one’s feelings concerning sex offenders residing in the private community, the case is troubling as yet one more example of a government involving itself in the affairs of a private community. We know that private communities have been observing state and federal laws for decades through recognition and observance of laws against discrimination. Now this is the first case we are aware of where a class which is not protected under discrimination laws, is receiving yet another type of protection. While obviously we were not involved in the trial of the case, we cannot help but wonder if the Lake Naomi plaintiffs raised the fact that federal law prohibits sex offenders from applying for public housing (U.S. Code § 13663). If private communities must adhere to the same laws as municipal governments (and presumably the Federal government) why can’t a private community prohibit sex offenders? The reasoning of the court in voiding the restriction against sex offenders living in private communities seems inconsistent with analogous federal law.
The association may appeal but as of now this case is sounding the alarm over yet another intrusion into the affairs of private communities, their ability to self-govern and to provide their owners with the community that they wish to reside in. Nevertheless, if an association would like to amend its documents to prohibit sex offenders, there is no case in Massachusetts prohibiting it.
For a copy of the Decision [click here].