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A Florida real estate agent recently said that a client had fired him, in part, because he hadn’t disclosed that the property the client was interested in was next to the home of a sex offender.
The agent said he regularly advises buyers to visit neighborhoods in person, to check in with police departments and to review websites. He said he told the buyer, however, that he wasn’t legally able to reveal that a sex offender lived near the property.
But as of June, that appears to only have been true in New Jersey and Delaware, an investigation by Inman has found. Buyer’s agents at that time could have legally shared information on sex offenders with buyers in all other states, according to a review of fair housing laws, interviews with real estate attorneys and research conducted for the National Association of Realtors (NAR).
In fact, buyer’s agents often should share certain sex offender information with buyers in states where it’s permitted, according to guidance from NAR and real estate attorneys. That generally means not only providing notice to buyers of where they can find sex offender information but also sharing any actual knowledge of offenders living close to listings of interest to buyers, NAR and attorneys say.
In addition to disclosing actual knowledge of sex offenders, buyer’s agents should also consider revealing information they may have come across on a state sex offender registry that might be relevant to a client — as long as they cite the registry as the source of the information.
That’s not to say that buyer’s agents are legally obligated to dig up sex offender information for buyers. They are not, NAR and attorneys say. Any responsibility agents may have to share sex offender information, sources say, ends after they have disclosed only what they already happen to know.
This article examines how buyer’s agents, not listing agents, should handle sex offender information. The question of how listing agents should handle sex offender information — which is a separate issue because listing agents represent sellers — is not explored.
Fair housing laws don’t protect sex offenders
Some buyer’s agents tell buyers that fair housing laws prohibit them from sharing information about sex offenders.
But the Department of Housing and Urban Development (HUD) has explicitly stated that sex offenders are not protected by the federal Fair Housing Act. No fair housing experts that Inman spoke to for this article were aware of any state or local fair housing rules that protect sex offenders.
Agents who systematically disclose the locations of sex offenders in certain neighborhoods to buyers with children but not to buyers without children could test fair housing laws, just as they might by sharing other types of information based on whether buyers belong to a protected class, according to Bryan Greene, general deputy assistant secretary of HUD’s fair housing and equal opportunity division.
But Greene said he has trouble seeing how sharing sex offender information equally among clients could violate fair housing laws, and that he has never heard of any case where a party alleged that the disclosure of sex offender information violated fair housing laws.
Prohibited only in New Jersey and Delaware as of June
Buyer’s agents in many states also may tell buyers that state laws tie their hands when it comes to sharing sex offender information.
While some states have statutes exempting agents from liability for failing to disclose nearby sex offenders, as of June, only two states, New Jersey and Delaware, had statutes that explicitly barred agents from sharing sex offender information with buyers, according to research last updated in June that was provided to NAR by the Legal Research Center.
Delaware prohibits licensees from disclosing “any facts or suspicions that any party” is a registered offender “without the informed consent of the affected party,” and advises licensees to direct people asking for this information to the Delaware State Police. New Jersey’s ban, meanwhile, prohibits licensees from sharing sex offender information sourced from government records and instructs licensees to direct people asking for the information to the local county prosecutor.
On the other hand, one state, Montana, actually requires agents to share knowledge of sex offenders relevant to a property.
Agents in all other states appear to be legally permitted, but not necessarily obligated, to share sex offender information with buyers.
NAR ‘general guidance’
Except in states where the issue is expressly addressed in statute, the agent’s professional role in disclosing sex offender registration information “is uncertain and requires the application of judgments based on all facts and circumstances,” according to “general guidance” provided by NAR to Inman.
That said, buyer’s agents would generally be well advised to provide written notices of the availability of a state sex offender registry in states “without clear guidelines,” the general guidance stated. (NAR stressed that the “general guidance” was not a “recommendation” as NAR doesn’t have a formal policy on the sharing of sex offender information by agents.)
Buyer’s agents who have actual knowledge of sex offenders living close to properties of interest also generally should share that information with buyers, according to NAR’s guidance.
The guidance added that “to ensure the most accurate information is available to their clients,” buyer’s agents should also consider advising buyers to independently review the state sex offender registry to verify the information and to learn about the locations of any other offenders.
‘Put the burden upon the buyer’
An agent might tell a buyer, ‘Hey, there’s an offender nearby. I don’t know if there are others. Here’s a website you can go to,” said Russ Cofano, an attorney who has served as the CEO of Missouri Realtors and senior vice president of industry relations at realtor.com operator Move.
“Put the burden upon the buyer,” he says.
Indeed, attorneys agree that agents certainly are never obligated to proactively research sex offender locations for clients. They should share any potentially relevant information that they already have and then tell their clients that it’s up to them to find out more, they say.
What if an agent has recently seen sex offender information on the offender registry but doesn’t know for sure if that information is true? Should the agent disclose that information?
Attorneys say agents should at least consider it if they believe the information could be relevant to their clients, so long as they cite the offender registry as the source of the information.
“One way to look at it is that doing so probably has little or no downside if the disclosure is essentially ‘Mr. X who is listed on the registry — which you can access at the police station (or whatever) — lives at Y address,'” said Ralph Holmen, associate general counsel at NAR.
“Mr. X may not like that, but if it’s true, he shouldn’t have any real legal objection,” he added. “And it also insulates the agent against a later claim from the buyer that the agent had actual knowledge about Mr. X and where he lived and the fact of Mr. X’s listing on the registry and failed to disclose those facts to the buyer.”
Buyer’s agents often have a fiduciary duty to reveal any material information that they have about a property to a client, Ralph Holmen says. And a property’s close proximity to sex offenders, he said, could certainly be material to some buyers.
Some states, including Arizona, Michigan and Texas, provide that licensees face no liability for failure to disclose sex offender information. But even in those states, agents still are often best off sharing offender information with buyers if they believe that information might influence a buyer’s decision to purchase a home, experts say.
“Your buyer is going to find out after the fact, and they’re going to come back to you and say ‘What the hell,’” Cofano said of the buyers who would care about the presence of nearby sex offenders.
‘…falsity rests with the inaccuracy of the public record’
Some agents say they won’t share offender registry information because they believe they could be held liable for damages to their client or someone else if the information turns out to be inaccurate.
But attorneys say that could only realistically happen if an agent doesn’t cite the sex offender registry as the source of the information.
“… if you repeat correctly what’s on the public record and attribute it to the public record and what you say about the public record is true, then you’re not liable for defamation, slander or anything else,” said Robert Butters, a Chicago-based real estate attorney who formerly served as a deputy general counsel at NAR from 1986 to 1992.
“Sex offender information from the registry ‘may be false, but the falsity rests with the inaccuracy of the public record.”