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 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.

Note: You can search for registered sex offenders in Arizona here.

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