Known Sex Offender Liability - Are Landlords Responsible?

[Mindy Jensen]

I've seen a couple of sex offender threads recently, and saw several people mention that a landlord can be responsible if they knowingly rent to someone and they re-offend.

Attorneys of BiggerPockets, is this true? 

[Thadeous Larkin]

@Mindy Jensen - That's a really complicated question.  Since I don't represent anyone here, don't take this as legal advice...more general guidelines and considerations.  It's a very longwinded answer, so stick with me.

1)  Let's define some terms:  When you're talking about "liability" you're probably talking about civil liability (or "torts"), not criminal.  Nobody is going to jail for a sex offender tenant committing a sex offense in your property.  So we're just in the civil realm - In other words, how exposed are you to a lawsuit prevailing against you?  There's not really such a thing as "what stops me from getting sued," because this is America and that means that basically anybody can sue anybody over nearly anything.  The question is whether the suit has merit and its chances of success.  

2)  Your rules will vary STATE BY STATE.  States, not the Federal Government, govern their own landlord-tenant laws (though there are federal statutes and Constitutional considerations like class-based discrimination to keep in mind).  That said, you're probably going to get 51 different answers to your question depending on what state you're in.  The absolute BEST advice you can receive when asking this question comes from an attorney barred in the state where you are doing business and who specifically practices real estate law (in Colorado I have @Drew Fein on retainer, for example...and I'm a lawyer with almost ten years of practice!).  One of the most dangerous phrases somebody can say to you when talking about the law is "I'm not a lawyer, but..."  

This is why I disagree so vehemently with @Scott Trench in his book "Set for Life" when he suggests doing your own legal research to save a few bucks.  Most online resources about legal issues of any significance are incomplete, are not state-specific, or are, more often than not, simply wrong.  Or people don't interpret the rules correctly.  It's like people self-diagnosing using WebMD.  But that's a tangent for another post, sorry to hijack...

3)  I'm only going to use Virginia as an example, because that's where I'm a member of the bar.  Let's start out with the big concerns and then work our way to the smaller/less likely ones, shall we?  

Landlords always worry about discrimination.  It's good to be cognizant of the fact that you could be violating someone's rights by discriminating against them!  Good for you for being a conscientious landlord!  However, housing discrimination mostly only applies to "protected classes" under the Fair Housing Act (Federal Law).  These protected classes are race, color, sex, national origin, family status (e.g. can't refuse to rent to a pregnant lady), mental/physical disability, and religion.  I'm not aware of any others, though States can expand to other classes (I think Washington state also has "military status," for example.  Don't quote me on that).

Notice what's not on there?  "Criminal history."  Sex Offenders don't fall into the "protected classes" definition for federal housing law.  So, inverse to your question, you can, for the most part, totally legally discriminate against sex offenders by not renting to them.  Don't most people run a criminal history on prospective tenants?

That's not specifically what you asked about, but I wanted to be sure we were clear about housing discrimination as our jumping off point.  It informs the rest of the discussion, because there's nothing PREVENTING you from refusing to rent to a sex offender based on their status.  So, bearing that in mind...

4)  Okay, so you've decided that you're going to give a sex offender a chance and are going to allow them to rent your single family house.  Assume in this scenario that you've run the background check and KNOW that this person is a sex-offender who must register.  

Let's take a peek at the criminal code of Virginia and sex offender registration.  Sex Offenders are prohibited, by statute, from coming within 100 feet of schools and residing within 500 feet of a school (see 18.2-370 series...I've put people in jail for violating this statute back in the day).  :record scratch:  Wait a minute...residing within 500 feet of a school?  

That's right - they cannot live within 500 feet of a school.  

What if your property is 400 feet from a school and you rent to the registered sex offender we talked about above?  The person you were giving a second chance to?  And what if they then re-offend using your house as their base of operations?

You have now knowingly rented a house within 500' of a school to a registered sex offender, flouting the publicly-accessible criminal code of Virginia.  

In Virginia, a tort can take many forms.  Summarizing my overpriced law school education as quickly as possible to explain Torts, you have a responsibility to not harm other people.  In Virginia, you commit a tort when you violate that responsibility.  You can do it intentionally or unintentionally (usually through negligence).  Negligence is the failure to use due care to prevent harm.  

Have you failed your duty to prevent harm by knowingly renting to a sex-offender, somebody who the State deems so dangerous and likely to re-offend that they make them register with the State, have to report their movements and social media presence, and have criminal statutes that prevent them from living certain places?

...maybe.  I'd say probably.  

That's just one example of a way in which you could probably be found civilly liable for renting to a registered sex offender in a limited circumstance.

5)  If you're reading that and saying "That's ridiculous!  These lawyers are ruining America and my profit margin with their hyper-litigiousness!  Let's kill all the lawyers!  I love anarchy!", let me pose to you the following thought exercise:  You have a 7-year old little girl who attends an elementary school walking distance from your home.  A landlord rents out the house right next door to the school to someone convicted of a child-sex crime.  That person then, over the course of a few weeks, wins over the confidence of your child and invites them into their home.  The inevitable happens and your child is now a sex crime victim and has to deal with that for the rest of their life.  As the parent trying to help your child through that trauma and trying to make sense of the whole situation yourself ("how did I fail to protect my kid?  What more could I do?"), wouldn't you at some point think "How did that sex offender get so close to the school?" or "what was that landlord thinking?  There are laws about this!"

Just something to consider.

6)  In sum, Mindy, I can imagine at least one fact-specific scenario in which someone could potentially be held civilly liable for renting to a sex offender.  But the safest course of action, if you're considering renting to a sex-offender, is to consult an attorney about your fact-specific scenario.  A few hundred bucks worth of legal advice on the front end can save a WHOLE lot of money and heartache (and potentially save your business) on the back end.