Sexual Predators in Condominiums

 Sexual Predators in Condominiums

 October 28, 2005

Sexual predators are a danger to society.  Over the years, laws have been passed to give communities more information on sexual offenders and predators to protect the communities in which they will reside.  This information is made available via websites that provide the location of sexual offenders.  County sheriff’s are also now required to notify those living within a close proximity to sexual predators.

            Condominium associations are groups of individually owned units in which the owner must also provide finances for common area upkeep.  Condominiums are governed by a set of rules known as deed restrictions, which consist of bylaws and amendments.  These rules are set forth to protect the association from decreased monetary values and to keep the association running smoothly. Although sexual predators have constitutional rights, some believe that they should not be allowed to live in condominiums in order to protect those already living within the association.  The law significantly changed after Megan Kanka was killed by a sexual predator.

Megan Kanka was a 7 year old child living in Hamilton Township, New Jersey.  Her parents, Richard and Maureen, were law abiding citizens who thought their children were safe in the community.  On July 29, 1994, Richard and Maureen realized their community was not as safe as they thought, as their daughter Megan disappeared.  Immediately local authorities were notified of her disappearance and quickly they learned an unnerving truth, three sex offenders lived across the street, in which authorities believed were somehow involved.  No one, not even Richard and Maureen Kanka, knew they lived just 30 yards from their front door.  Local authorities uncovered the past of Jesse Timmendequas, one of the sexual offenders living in the house.  Timmendequas was previously convicted of attempted sexual assault on a 5 year old girl and after release from jail was arrested again for attempted sexual assault and attempting to cause serious bodily injury to a 7 year old girl.  After his six year sentence at the Adult Treatment and Diagnostic Center, he moved across the street from Megan Kanka.  Twenty-four hours after Megan’s disappearance, Jesse confessed and started telling his story.  He lured Megan into his house by telling her he had a new puppy, but that it was too young to come outside yet.  Jesse took Megan into his bedroom and brutally raped and murdered her (McGraw).

Jesse Timmendequas was tried, convicted, and sentenced to death.  Months after Megan’s death, the State of New Jersey adopted Megan’s Law, which required communities to be notified when high risk offenders were living near-by.  Several years later on May 17, 1996, President Bill Clinton signed Megan’s Law, which requires notification in all 50 states.  In Ohio, all sexual offenders are listed in an online database accessible to the public.  Only criminals labeled as sexual predators or habitual sexual offenders are required by law to register.  According to KlassKids Foundation for Children, the State of Ohio defines sexual predator as a sexually violent offense and habitual sexual offender as a person committing a sexually oriented offense more than once.  Condominiums can prevent sexual predators from living within the association.

The State of Ohio requires that all condominiums file a drawing with the county to define the land that will be a part of the condominium.  All land within the condominium has deed restrictions on the homes.  On each deed there are certain restrictions upon the owner; things that the owner can and can not do.  These deed restrictions allow the condominium to require owners to follow the rules.  As an example, condominiums require owners to pay a monthly maintenance fee that keeps the condominium looking nice and everything in working order.  If an owner decides not to pay a maintenance fee, then the condominium can evict the owner because of the deed restrictions in place.  These deed restrictions are designed to keep the condominium looking nice physically and protect the best interest of the community, not of the individual.  Individual rights give way to the best interest of the community in condominiums.

Deed restrictions can also prohibit owners from renting out their units, meaning people who rent their unit are not allowed.  As an example, a high school teacher tries to move into a condominium and rent a unit, the condominium could stop him, even though that person did nothing legally wrong.  Children can also be prohibited from condominiums, as some communities may not want to deal with the wear and tear that children put on facilities.  One such condominium is Avonbury Lakes in Avon Lake, right next to Costco.

Sexual predators move into condominiums for the easy access to children.  Many condominiums have common areas, such as a centrally located playground or pool.  Especially in high rise condominiums, a sexual predator can look out his window at a playground or pool looking for a child alone.  Many condominiums do not want this to happen, so they take precautionary measures by not allowing sexual predators in.  A 75% vote in a condominium can change the deed restrictions, which, if desired, can prevent a sexual predator from living within the community.

In the State of Ohio, when a homeowner is selling his house, he must complete a Real Property Disclosure Form, which is given to the buyer.  This form obtains information on all of the negative aspects of a property.  The seller must include information on any sexual predators living nearby.  The fear is that a sexual predator living nearby would lower the property value of a house.  Condominiums would like to keep property values as high as possible, which is another reason they do not want sexual predators living within the community.  Even condominiums with rules prohibiting children are also banning sexual predators in order to prevent property values from falling. 

The Milwaukee Journal Sentinel reported in 2003 that home values were not affected after a sexual predator moved into a neighborhood.  Even though property values did not decline over a five year period, residents were still not completely comfortable with the fact a sexual predator was living nearby.  The authorities placed a sexual predator in a residential area in Milwaukee.  After the placement, residents started to petition local officials to have the sexual predator removed.  Even the authorities who placed the sexual predator believe it would save everyone a lot of hassle of the city would change zoning laws allowing them to place criminals in commercial and industrial zones (Derus).  No matter where sexual predators will live, people will always be upset with their presence.

Condominiums argue that the whole goal of the community is to promote the best interest of the community, not of an individual.  This issue has been taken to court only once.  In 1998, Mulligan v. Panther Valley Property Owners Association was brought fourth to the New Jersey Superior Court.  The Panther Valley Property Owners Association passed an amendment which excluded sexual predators from living within the association.  Elinor Mulligan, the Plaintiff in the case, believed that this rule infringed on her right to freely transfer her property and would make it difficult to sell her home.  The court ruled with the Panther Valley Property Owners Association as the court believe her argument was not valid because New Jersey only had 80 sexual predators living within the state at the time and 8.6 million residents (Brennan 20-26).

The discrimination in housing on the basis of physical or mental disability is prohibited under the Fair Housing Amendments Act (FHAA) of 1988.  FHAA does not apply to people who would present a threat to the health or safety of others.  Since sexual predators are the most dangerous, as they are the most likely to re-offend, they would be a direct threat to the safety of children in a community (Brennan 20-26).

            Sexual predators have yet to take a stand against restrictions put in place for them and more restrictions are being put in place.  In North Canton, Ohio, City Council recently passed a law which prohibits sexual predators from living with 2,500 feet of select places.  These places are locations in which children frequent and include: schools, public parks or pools, library, and day-care centers ("North Canton Law Would Push Predators Even Farther Away").  Even though North Canton only has one sexual predator living within its city, it is one of the strictest laws of its kind in the country. 

Working Works Cited

Brennan, Molly. "Unclear and Present Danger." Common Ground Sept.-Oct. 2005: 20-26.

Derus, Michele, and Tom Held. "Home Values Not Hurt By Predators." Milwaukee Journal Sentinel 7 June 2003. 14 Sept. 2005 <http://www.jsonline.com/homes/buy/jun03/146681.asp>.

McGraw, Seamus. "Suffer The Children: The Story of Megan's Law." Court TV's Crime Library. Court TV. 28 Sept. 2005 <http://www.crimelibrary.com/serial_killers/predators/kanka/1.html?sect=2>.

KlassKids Foundation for Children. 28 Sept. 2005 <http://www.klaaskids.org/pg-legmeg.htm>.

"North Canton Law Would Push Predators Even Farther Away." The Plain Delaer 12 Oct. 2005. 12 Oct. 2005 <http://www.cleveland.com/search/index.ssf?/base/iscri/1129113114243710.xml?iscri&coll=2>.

1. What is a condominium and how does one operate?

            A condominium is a form of property ownership.  Historically, owning property was about owning land and the home or other type of building was considered an improvement on the land.  A condominium, which is created under a specific section of the Ohio Revised Code (R.C. §5311), permits people to own a home, or unit, while sharing ownership of the land, or common elements.  The unit is typically defined as the interior space and the common elements are typically defined as the exterior structure of the unit including the foundation, roof, and siding, and all the land and any common recreational facilities, such as a pool or club house.

            A developer declares certain property to be a condominium by filing a “Declaration of Condominium Ownership.”  The developer also creates an association to operate the property.  By law, the developer must turn over control of the association to the owners after selling a certain percentage of units.  The owners elect representatives from amongst themselves to serve as a Board of Directors.

            The Board has the authority to operate the association in accordance with the Declaration, Bylaws, and R.C. §5311.   Generally, the Board is responsible for maintaining the common elements and enforcing the restrictions as established by the Declaration and Bylaws.  The Board has the authority to make most decisions without a vote of the owners, particularly with respect to maintaining the property and setting the budget for the common expenses.  The Board must get owner approval for certain actions, such as amending the Declaration and Bylaws.

            The owners are responsible for maintaining their units, paying their share of the common expenses and complying with the restrictions.  If an owner fails to pay the fees or violates a restriction, the Board may take legal action to protect the Association’s interests.

   

2. What are the current laws pertaining to sexual predators?

            Ohio, like many other states, adopted a version of New Jersey’s “Megan’s Law,” which was enacted in response to the rape and murder of a seven-year-old, Megan Kanka.  Ohio’s Law, Ohio Revised Code Section 2950, does not distinguish between sexual offenses against children or adults, but provides for notice to the community any time a sexual predator resides nearby.

            R.C. §2950 defines three classes of sex offenders:  sexual predators, habitual sex offenders, and sexually oriented offenders.  The most severe designation of “sexual predator” is prescribed when a defendant is convicted of or has pled guilty to committing a sexually oriented offense and is “likely to engage in the future in one or more sexual offenses.”  As a result, once released from jail, the convict must still register his/her residence with the county sheriff’s department.  In turn, the sheriff is required to notify neighbors within a prescribed area of the sexual predator’s residence.  Under certain circumstances, a court may also require the sheriff to notify neighbors of a habitual sex offender’s residence.

3. What can a condominium do to prevent sexual predators from moving

into their community?

            When the developer creates the condominium and files the Declaration of Condominium Ownership, he creates certain restrictions as to how the property may be used.  For example, some associations restrict the number or type of pets or prohibit them entirely.  The association, with the approval of owners representing at least 75% of the association, has the ability to amend the Declaration to add, delete, or modify the restrictions.  With the ability to establish restrictions on the property, the condominium association may amend its Declaration to prohibit sexual predators from moving into the condominium property.

            Because the law is so new, this type of restriction has not been tested in Ohio courts.  Similar restrictions have been upheld in other states, however, for the reason that an association’s interests in protecting resident safety and preserving home values outweigh the minimal impact the restriction would have on an owner’s ability to sell or lease his/her unit.  Furthermore, sexual predators are not a protected class (like race, creed, or color) under federal fair housing laws, so this type of restriction is not considered discrimination.

4. What can a condominium do if they discover a sexual predator is

already living in their community?

            A condominium association could still try to pass an amendment prohibiting sexual predators and then try to enforce the restriction retroactively.  Again, since sexual predators are not a protected class, there is a chance that the association would be successful, but a court will ultimately decide.

5. Do sexual predators affect the property value in a condominium if one

is living there?

            Yes.  Even if an owner does not disclose to a prospective buyer that a sexual predator is living within the community, the information is readily available through the sheriff’s online website.  Often, prospective buyers will search the website and avoid communities where sexual predators have listed their residences.  Current owners complain that their property values have fallen as a result.