Sacramento Report

Sex Offenders Can Live at Rental Properties

by Debra Carlton

For the past two years, CAA has worked hard to amend California law to ensure that rental property owners can screen out high-risk sex offenders. In December 2004, when California’s Megan’s Law database was made available to the general public, rental property owners began to receive calls from angry tenants who learned that a high-risk sex offender was living at the property. At the same time the database was made available, the Legislature also stated that the online registry could not be used by rental property owners to discriminate against sex offenders listed on the website. What changed in December 2004 wasn’t the presence of sex offenders; it was the knowledge of their whereabouts. When the Megan’s Law database was made available to the public, a host of issues was dropped at the doorstep of the rental housing industry.

Here’s what happened: First, tenants went online and discovered that a sex offender lived in their rental complex. The tenants then demanded that property owners evict sex offenders and that they refuse to rent to sex offenders in the future. But rental property owners soon learned that state law limits their ability to use the Megan’s Law database to screen and evict convicted sex offenders. As a result, tenants with children and other potential victims who had the financial resources began to move out when owners failed to remove sex offenders. Some rental property owners began to pay sex offenders exorbitant amounts of money to leave. Finally, in defense of tenants and neighboring homeowners, the news media criticized the rental housing industry for housing sex offenders next to families with children or, in the worst case, hiring registered sex offenders to work on the property.

Unfortunately, at this point, the Legislature has been unwilling to change the law to make it clear that a rental property owner can use the database to screen out high-risk sex offenders. One legislator, however, believes he has the answer to the industry’s dilemma: instead of allowing owners to screen out high risk-sex offenders, he suggests giving the rental housing industry liability protection if the sex offender harms another tenant. Assemblymember Mark Leno (D-San Francisco) has placed this concept into AB 2712.

But is the issue really liability protection? Most rational business owners today would agree that a shield from lawsuits is a laudable and necessary goal. In the case of Megan’s Law, however, liability concerns have taken a back seat to the looming specter of an incident involving a sex offender who harms another tenant. In addition, the cost of tenant turnover and the extortion of “payoffs” by sex offenders who demand landlords give them money to move are rising.

CAA remains steadfast in its position that rental property owners should be legally authorized to keep high-risk sex offenders out of their rental properties, especially when children reside there. CAA leadership and members believe that any liability protection not coupled with owner authorization to keep high-risk sex offenders out of the property will only exacerbate the current situation and place residents, owners and managers at an even greater risk than they are today.

The passage of AB 2712 will make it easier for sex offenders, state lawmakers and the courts to argue that sex offenders should be housed in rental homes and apartment buildings, a direction that is counter to CAA’s policy of providing safe housing to those families and individuals who rent their homes.

Liability protection, clear or imagined, would:

continue (and even increase) the risk to families with children who share a common wall and common areas with a sex offender;
unfairly impact low-income and working class families, who cannot afford to move when a sex offender moves in;
disproportionately impact owners who cannot afford to pay sex offenders to leave;
reinforce a sex offender’s purported right to live at a rental property if an owner’s liability is decreased; and
negatively impact occupancies, continue tenant attrition and harm property values.

Even if liability protection were the answer, AB 2712 doesn’t even deliver what it promises. According to independent legal counsel, AB 2712 not only fails to provide the liability protection claimed, it also contains glaring internal conflicts. The bill does not absolve landlords of obligations that exist under other laws. Under current law, landlords have a duty to take reasonable steps to secure the property against the foreseeable criminal acts of third parties. (In this case, the known danger—as stated by the Legislature in current law—is the sex offender.) What it does instead is give some state lawmakers the ability to argue that they have “solved the problem” for the rental housing industry, while at the same time protecting sex offenders from “discrimination.”

CAA has offered several proposed amendments that would resolve the conflicts that are exacerbated by the proposed language. Unfortunately, those amendments have been rejected.

AB 2712 moved out of the Senate Judiciary Committee on June 27, 2006, as a result of conflicting policy decisions by various rental housing industry groups and advocates. The measure was supported by the Western Center on Law and Poverty, which does not want to see high-risk sex offenders moved out of rental housing. The trial lawyer lobby was neutral. AB 2712 will now move to the Senate floor and, if successful, it will go on to the Assembly. Watch for future legislative alerts, asking you to call your legislators.

For a copy of CAA’s Megan’s Law Policy Statement, or a copy of the legal opinion referenced in this article, go to CAA’s website at www.caanet.org.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or San Francisco Apartment Magazine. Debra Carlton is senior vice president of legislative affairs for the California Apartment Association and is CAA’s chief lobbyist. Copyright © 2006 by San Francisco Apartment Magazine. All rights reserved.