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Arizona Real Estate Law
by Christopher A. Combs
The following is for informational purposes
only and is not intended as definitive legal or tax advice. You
should not act upon this information without seeking independent
legal counsel. If you desire legal, tax or other professional advice,
please contact your attorney, tax advisor or other professional
consultant.
Homeowners Can Amend CC&Rs to Prohibit Residency
to Registered Sex Offenders
Question: A registered sex offender was recently arrested
in our community in North Phoenix. No one had any idea that our
neighbor was a registered sex offender. We had an emergency meeting
of the homeowners, and we want to amend our CC&Rs to prohibit registered
sex offenders from purchasing a home in our community in the future.
We would do a background check on every potential purchaser under
the website for registered sex offenders (www.registeredoffenderslist.org)
Would this CC&R provision be enforceable?
Answer: First, registered sex offenders are not a “protected
class” such as race or religion under the Fair Housing laws. Second,
unless protection under Fair Housing laws is involved, the homeowners
in a community can adopt CC&Rs that reasonably restrict ownership.
For example, CC&Rs can require approval of new homeowners by the
HOA board of directors. Therefore, the provision of the CC&Rs prohibiting
registered sex offenders as homeowners is probably enforceable.
In 2001 a New Jersey appellate court upheld an HOA bylaw that prohibited
condominium ownership by Tier 3 registered sex offenders. 766 A.2d
1186. In New Jersey, as in Arizona, Tier 3 is reserved for registered
sex offenders who are classified as a “high” risk level to the community.
Tier 1 and Tier 2 registered sex offenders are not considered as
“dangerous” as Tier 3 registered sex offenders. In New Jersey there
were only eighty Tier 3 registered sex offenders out of a total
of 11,000 registered sex offenders. Inasmuch as there were only
eighty Tier 3 registered sex offenders in New Jersey, the New Jersey
appellate court had no problem upholding the HOA bylaw. The New
Jersey appellate court stated, however, that if the HOA bylaw or
similar restriction included all registered sex offenders, there
would be stronger arguments that the HOA bylaw or similar restriction
would not be upheld.
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