Known Sex Offender Liability - Are Landlords Responsible?
Mindy JensenPro Member
BiggerPockets Money Podcast Host · Longmont, CO · Member since 2014 · 7k+ posts · 10k+ votesKnown Sex Offender Liability - Are Landlords Responsible?
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Colorado Springs, CO · Member since 2018 · 85 posts · 144 votes
6y@Mindy Jensen - That's a really complicated question. Since I don't represent anyone here, don't take this as legal advice...more general guidelines and considerations. It's a very longwinded answer, so stick with me.
1) Let's define some terms: When you're talking about "liability" you're probably talking about civil liability (or "torts"), not criminal. Nobody is going to jail for a sex offender tenant committing a sex offense in your property. So we're just in the civil realm - In other words, how exposed are you to a lawsuit prevailing against you? There's not really such a thing as "what stops me from getting sued," because this is America and that means that basically anybody can sue anybody over nearly anything. The question is whether the suit has merit and its chances of success.
2) Your rules will vary STATE BY STATE. States, not the Federal Government, govern their own landlord-tenant laws (though there are federal statutes and Constitutional considerations like class-based discrimination to keep in mind). That said, you're probably going to get 51 different answers to your question depending on what state you're in. The absolute BEST advice you can receive when asking this question comes from an attorney barred in the state where you are doing business and who specifically practices real estate law (in Colorado I have @Drew Fein on retainer, for example...and I'm a lawyer with almost ten years of practice!). One of the most dangerous phrases somebody can say to you when talking about the law is "I'm not a lawyer, but..."
This is why I disagree so vehemently with @Scott Trench in his book "Set for Life" when he suggests doing your own legal research to save a few bucks. Most online resources about legal issues of any significance are incomplete, are not state-specific, or are, more often than not, simply wrong. Or people don't interpret the rules correctly. It's like people self-diagnosing using WebMD. But that's a tangent for another post, sorry to hijack...
3) I'm only going to use Virginia as an example, because that's where I'm a member of the bar. Let's start out with the big concerns and then work our way to the smaller/less likely ones, shall we?
Landlords always worry about discrimination. It's good to be cognizant of the fact that you could be violating someone's rights by discriminating against them! Good for you for being a conscientious landlord! However, housing discrimination mostly only applies to "protected classes" under the Fair Housing Act (Federal Law). These protected classes are race, color, sex, national origin, family status (e.g. can't refuse to rent to a pregnant lady), mental/physical disability, and religion. I'm not aware of any others, though States can expand to other classes (I think Washington state also has "military status," for example. Don't quote me on that).
Notice what's not on there? "Criminal history." Sex Offenders don't fall into the "protected classes" definition for federal housing law. So, inverse to your question, you can, for the most part, totally legally discriminate against sex offenders by not renting to them. Don't most people run a criminal history on prospective tenants?
That's not specifically what you asked about, but I wanted to be sure we were clear about housing discrimination as our jumping off point. It informs the rest of the discussion, because there's nothing PREVENTING you from refusing to rent to a sex offender based on their status. So, bearing that in mind...
4) Okay, so you've decided that you're going to give a sex offender a chance and are going to allow them to rent your single family house. Assume in this scenario that you've run the background check and KNOW that this person is a sex-offender who must register.
Let's take a peek at the criminal code of Virginia and sex offender registration. Sex Offenders are prohibited, by statute, from coming within 100 feet of schools and residing within 500 feet of a school (see 18.2-370 series...I've put people in jail for violating this statute back in the day). :record scratch: Wait a minute...residing within 500 feet of a school?
That's right - they cannot live within 500 feet of a school.
What if your property is 400 feet from a school and you rent to the registered sex offender we talked about above? The person you were giving a second chance to? And what if they then re-offend using your house as their base of operations?
You have now knowingly rented a house within 500' of a school to a registered sex offender, flouting the publicly-accessible criminal code of Virginia.
In Virginia, a tort can take many forms. Summarizing my overpriced law school education as quickly as possible to explain Torts, you have a responsibility to not harm other people. In Virginia, you commit a tort when you violate that responsibility. You can do it intentionally or unintentionally (usually through negligence). Negligence is the failure to use due care to prevent harm.
Have you failed your duty to prevent harm by knowingly renting to a sex-offender, somebody who the State deems so dangerous and likely to re-offend that they make them register with the State, have to report their movements and social media presence, and have criminal statutes that prevent them from living certain places?
...maybe. I'd say probably.
That's just one example of a way in which you could probably be found civilly liable for renting to a registered sex offender in a limited circumstance.
5) If you're reading that and saying "That's ridiculous! These lawyers are ruining America and my profit margin with their hyper-litigiousness! Let's kill all the lawyers! I love anarchy!", let me pose to you the following thought exercise: You have a 7-year old little girl who attends an elementary school walking distance from your home. A landlord rents out the house right next door to the school to someone convicted of a child-sex crime. That person then, over the course of a few weeks, wins over the confidence of your child and invites them into their home. The inevitable happens and your child is now a sex crime victim and has to deal with that for the rest of their life. As the parent trying to help your child through that trauma and trying to make sense of the whole situation yourself ("how did I fail to protect my kid? What more could I do?"), wouldn't you at some point think "How did that sex offender get so close to the school?" or "what was that landlord thinking? There are laws about this!"
Just something to consider.
6) In sum, Mindy, I can imagine at least one fact-specific scenario in which someone could potentially be held civilly liable for renting to a sex offender. But the safest course of action, if you're considering renting to a sex-offender, is to consult an attorney about your fact-specific scenario. A few hundred bucks worth of legal advice on the front end can save a WHOLE lot of money and heartache (and potentially save your business) on the back end.
21 Replies
- Investor · Topeka, KS · Member since 2015 · 1k+ posts · 1k+ votes6y
I'm no attorney, but there is no way the landlord would be held responsible. It's no different than renting to someone who has a, for example, breaking and entering charge and while renting from you they do it again. The landlord would not be responsible.
- Colorado Springs, CO · Member since 2018 · 85 posts · 144 votes6y
@Mindy Jensen - That's a really complicated question. Since I don't represent anyone here, don't take this as legal advice...more general guidelines and considerations. It's a very longwinded answer, so stick with me.
1) Let's define some terms: When you're talking about "liability" you're probably talking about civil liability (or "torts"), not criminal. Nobody is going to jail for a sex offender tenant committing a sex offense in your property. So we're just in the civil realm - In other words, how exposed are you to a lawsuit prevailing against you? There's not really such a thing as "what stops me from getting sued," because this is America and that means that basically anybody can sue anybody over nearly anything. The question is whether the suit has merit and its chances of success.
2) Your rules will vary STATE BY STATE. States, not the Federal Government, govern their own landlord-tenant laws (though there are federal statutes and Constitutional considerations like class-based discrimination to keep in mind). That said, you're probably going to get 51 different answers to your question depending on what state you're in. The absolute BEST advice you can receive when asking this question comes from an attorney barred in the state where you are doing business and who specifically practices real estate law (in Colorado I have @Drew Fein on retainer, for example...and I'm a lawyer with almost ten years of practice!). One of the most dangerous phrases somebody can say to you when talking about the law is "I'm not a lawyer, but..."
This is why I disagree so vehemently with @Scott Trench in his book "Set for Life" when he suggests doing your own legal research to save a few bucks. Most online resources about legal issues of any significance are incomplete, are not state-specific, or are, more often than not, simply wrong. Or people don't interpret the rules correctly. It's like people self-diagnosing using WebMD. But that's a tangent for another post, sorry to hijack...
3) I'm only going to use Virginia as an example, because that's where I'm a member of the bar. Let's start out with the big concerns and then work our way to the smaller/less likely ones, shall we?
Landlords always worry about discrimination. It's good to be cognizant of the fact that you could be violating someone's rights by discriminating against them! Good for you for being a conscientious landlord! However, housing discrimination mostly only applies to "protected classes" under the Fair Housing Act (Federal Law). These protected classes are race, color, sex, national origin, family status (e.g. can't refuse to rent to a pregnant lady), mental/physical disability, and religion. I'm not aware of any others, though States can expand to other classes (I think Washington state also has "military status," for example. Don't quote me on that).
Notice what's not on there? "Criminal history." Sex Offenders don't fall into the "protected classes" definition for federal housing law. So, inverse to your question, you can, for the most part, totally legally discriminate against sex offenders by not renting to them. Don't most people run a criminal history on prospective tenants?
That's not specifically what you asked about, but I wanted to be sure we were clear about housing discrimination as our jumping off point. It informs the rest of the discussion, because there's nothing PREVENTING you from refusing to rent to a sex offender based on their status. So, bearing that in mind...
4) Okay, so you've decided that you're going to give a sex offender a chance and are going to allow them to rent your single family house. Assume in this scenario that you've run the background check and KNOW that this person is a sex-offender who must register.
Let's take a peek at the criminal code of Virginia and sex offender registration. Sex Offenders are prohibited, by statute, from coming within 100 feet of schools and residing within 500 feet of a school (see 18.2-370 series...I've put people in jail for violating this statute back in the day). :record scratch: Wait a minute...residing within 500 feet of a school?
That's right - they cannot live within 500 feet of a school.
What if your property is 400 feet from a school and you rent to the registered sex offender we talked about above? The person you were giving a second chance to? And what if they then re-offend using your house as their base of operations?
You have now knowingly rented a house within 500' of a school to a registered sex offender, flouting the publicly-accessible criminal code of Virginia.
In Virginia, a tort can take many forms. Summarizing my overpriced law school education as quickly as possible to explain Torts, you have a responsibility to not harm other people. In Virginia, you commit a tort when you violate that responsibility. You can do it intentionally or unintentionally (usually through negligence). Negligence is the failure to use due care to prevent harm.
Have you failed your duty to prevent harm by knowingly renting to a sex-offender, somebody who the State deems so dangerous and likely to re-offend that they make them register with the State, have to report their movements and social media presence, and have criminal statutes that prevent them from living certain places?
...maybe. I'd say probably.
That's just one example of a way in which you could probably be found civilly liable for renting to a registered sex offender in a limited circumstance.
5) If you're reading that and saying "That's ridiculous! These lawyers are ruining America and my profit margin with their hyper-litigiousness! Let's kill all the lawyers! I love anarchy!", let me pose to you the following thought exercise: You have a 7-year old little girl who attends an elementary school walking distance from your home. A landlord rents out the house right next door to the school to someone convicted of a child-sex crime. That person then, over the course of a few weeks, wins over the confidence of your child and invites them into their home. The inevitable happens and your child is now a sex crime victim and has to deal with that for the rest of their life. As the parent trying to help your child through that trauma and trying to make sense of the whole situation yourself ("how did I fail to protect my kid? What more could I do?"), wouldn't you at some point think "How did that sex offender get so close to the school?" or "what was that landlord thinking? There are laws about this!"
Just something to consider.
6) In sum, Mindy, I can imagine at least one fact-specific scenario in which someone could potentially be held civilly liable for renting to a sex offender. But the safest course of action, if you're considering renting to a sex-offender, is to consult an attorney about your fact-specific scenario. A few hundred bucks worth of legal advice on the front end can save a WHOLE lot of money and heartache (and potentially save your business) on the back end.
- Chicago, IL · Member since 2018 · 546 posts · 227 votes6y
@Thadeous Larkin - this is an incredibly thorough breakdown from a legal perspective. I can't begin to tell you how much I appreciate your post (this is why attorneys get paid the big bucks). I recommend all others who comment to really read what Thadeous has outlined above. The breakdown of the 6 points above will help a lot of people to really think through just how meticulous, and careful one needs to be with a decision like this. Thank you for pinpointing differences between being criminally liable and civilly liable, defining different legal terms and explaining culpability through a use-case scenario, re-emphasizing the importance of seeking out specialized legal counsel; someone who understands your state law, and so-on). It also comes down to asking the right questions; something that proper legal counsel should be able to help you think through. Posts like yours are exactly why I come to BiggerPockets.
- 6yScott TrenchPro MemberRental Property Investor · Denver, CO · Member since 2014 · 2k+ posts · 6k+ votes
@Thadeous Larkin - love your post, but am feeling heat from you and not sure why. I reference legal matters on a single page of Set for Life, and the verbatim text of that is:
"You might be surprised at how quickly you can learn about legal concepts. Why not seek legal help only after you have reviewed the issues and understand exactly what you need help with, both broadly and down to the specific issues?"
Sure, I do things myself to save a few bucks. But, more importantly, the wrong lawyer can needlessly put you in WAY over your head in overprotecting assets (like some lawyers who argue broadly for series LLCs, which are likely expensive overkill for most investors). Because I have a basic understanding of many issues related to my business, I am able to find quality help when I need it.
What exactly are you vehemently against?
- Rock Star Extraordinaire · Northeast, TN · Member since 2015 · 10k+ posts · 16k+ votes6y
One caveat to the legal post - really, to be civilly liable, you would have had to have known your house was less than 500 feet from a school. I suspect most people could not accurately get within a couple hundred feet of 500 feet if asked. The point is well taken, however, in that when it comes to civil liability you can be exposed to more risk than you may be aware. Which is why you should always carry good insurance. Also remember that liability is parceled by percentage, i.e. a drunk driver might be 50% civilly responsible for a judgement, the waiter 25% and the restaurant 25%.
Skyline Properties - Colorado Springs, CO · Member since 2018 · 85 posts · 144 votes6y
@Scott Trench - Oh, you want to feel some heat? Well here it comes.
There is nothing, and I mean NOTHING worse in this world than when somebody is 100%, dead-to-rights, completely and utterly wrong online.
And today that person is me.
When I listened to SFL, I lumped in and conflated your comparisons with the plumbing dripping the first time you tried to fix it as an endorsement of doing your own legal work, when (upon re-listening after your post) what you had to say was not that at all. Your point was about BLIND reliance on experts, rather than gaining some familiarity before seeking them out. To bolster your point, you also say that "Professionals and specialists have their place...it's absolutely critical to...rely on specialists for specific problems that might have negative consequences."
How embarrassing. I hereby retract my statement above and banish myself to the hall of shame.
- 6yScott TrenchPro MemberRental Property Investor · Denver, CO · Member since 2014 · 2k+ posts · 6k+ votes
@Thadeous Larkin hey no worries man. That's way overboard on the apology front lol I'm sorry if I appeared overly offended there. I agree - this stuff can get you into hot water, and it's always great to have legal professionals sound the word of caution and give examples of the myriad ways we can get ourselves into trouble as investors!
Also - in reading the section again, the tone certainly applied throughout the section - not hard to see why you might get the wrong impression there. When I go back and update it for a 2nd edition, I'll make sure to explicitly caveat that legal matters may be something to err on the side of caution with, especially if you are doing something unusual (like renting to a sex offender).
- BiggerPockets Money Podcast Host · Longmont, CO · Member since 2014 · 7k+ posts · 10k+ votes6y
@Thadeous Larkin, thank you for that thorough explanation. It makes a lot of sense the way you laid it out, and I am adding this post to my saved content for the next time I see this question pop up.
@Isaac S. I was asking the question as a hypothetical situation.
- Rental Property Investor · New York City · Member since 2019 · 703 posts · 538 votes6y
Not sure about renting to sex offenders but there are interesting explanations mentioned. Regardless of the incident or circumstance, the landlord will be named in a lawsuit no matter what occurred at the property and at the sidewalk of the property too. Even if the lawsuit has no merit, totally frivolous and has nothing to do with the landlord or the property they go after the landlord too.
- Rental Property Investor · Navarre, FL · Member since 2019 · 913 posts · 640 votes6y
Interesting information here. I won't knowingly rent to a sex offender. Does that label me a bad person?
I get it that ignorance is not an excuse in legal matters. But how would a landlord be expected to know that the budding tenant is a convicted sex offender? I'm new to the landlord part of this, heck every part of real estate, but is there a way to determine a person's criminal history via the vetting available as a landlord? I get it that there are credit checks, calls to current and former landlords, calls to employers, etc...but calls to the courts?
- Member since 2019 · 42 posts · 17 votes6y
@Thadeous Larkin bravo on the post! This is probably the best hypothetical lawsuit situation ive ever read here on bigger pockets. Have you ever thought about writing a book on "non legal advice" Just listing hypothetical scenarios. I have an engineering degree and If I ever ended up in legal trouble with my rental property I would just call up my lawyer and have him deal with it. How would I ever know if what advice he was giving was good or not? Having a basic background from reading you book would tell me if this guy was full of **** or not.
Ether way thanks for the post it really opened my eyes!
- Rockaway, NJ · Member since 2016 · 2k+ posts · 2k+ votes6yI'm gunna jump back in here with a thought that popped into my head. If a sex offender moves in somewhere, he/she has to notify all neighbors about his/her status. Now, if a new tenant is moving in and the sex offender is a current tenant, does landlord have any responsibility to let the incoming tenant know before they sign the lease? This could be the real deal breaker.
- Member since 2019 · 226 posts · 107 votes6y
Originally posted by @Michael King:
Interesting information here. I won't knowingly rent to a sex offender. Does that label me a bad person?
I get it that ignorance is not an excuse in legal matters. But how would a landlord be expected to know that the budding tenant is a convicted sex offender? I'm new to the landlord part of this, heck every part of real estate, but is there a way to determine a person's criminal history via the vetting available as a landlord? I get it that there are credit checks, calls to current and former landlords, calls to employers, etc...but calls to the courts?
Call the sheriff and give the SS, name and reason for the call and ask for a national check on the person, or.....A background check. It will have a scope that either you define (jurisdictions, time range, etc) or it pre-defined for you depending on who is doing your checking. Some are better than others, prices vary and so on. I just several months ago felt ginchy about a prospect and ordered a check that went back 7 years and covered some jurisdictions not identified by the prospect on his application. I hit. Five years ago, two states away from any offered residence location, he was arrested more than once for Methamphetamine possession, Domestic violence twice, and Dui's....with jail time. No keys for him.
- Rental Property Investor · Navarre, FL · Member since 2019 · 913 posts · 640 votes6y
@Daryl Luc Thank you! Good catch, and good example!
- Member since 2018 · 14 posts · 4 votes6y
Originally posted by @Michael King:
Interesting information here. I won't knowingly rent to a sex offender. Does that label me a bad person?
I get it that ignorance is not an excuse in legal matters. But how would a landlord be expected to know that the budding tenant is a convicted sex offender? I'm new to the landlord part of this, heck every part of real estate, but is there a way to determine a person's criminal history via the vetting available as a landlord? I get it that there are credit checks, calls to current and former landlords, calls to employers, etc...but calls to the courts?
We run all new tenants through a criminal and credit background check via Cozy.co. Sex offender status and any other criminal record would show up here. You can also Google -- it's public information (search something like "sex offender database"). We have also recently learned (the hard way) that we should start considering doing background checks on "inherited" tenants through a property purchase before renewing their leases.
- Colorado Springs, CO · Member since 2018 · 85 posts · 144 votes6y
@Anthony Rosa - I was doing a recent Continuing Legal Education course on Real Estate Law in Virginia, and one of the presenters acknowledged the obvious - namely that Landlords are much more likely to be sued than a tenant and are more likely to be sued by a tenant rather than the other way around. The phrase he used to describe why that is? "Landlords have bigger pockets." Funny little coincidence. But yes, you can't draw blood from a stone, so people generally include in any suit the person who they think has the most money (e.g. someone who owns the house instead of the person renting it). Good to have an attorney on retainer who can help head that off with a scary letter (the highly technical term me and my lawyer buddies use for it is a "nasty-gram").
@Michael King - The technical name of what you're looking for (criminal history) is an "NCIC check." NCIC stands for National Crime Information Center, a section of the FBI, and they maintain national records of criminal histories. @Daryl Luc has the right way to do it, because only authorized law enforcement agents have access to it. However, it's only as well maintained as the states who upload the information. Crap in, crap out. You might also need the help of an attorney or law enforcement officer to interpret it, because it lists state codes, abbreviations of crimes, etc. Generally there is an "alert!" message on top that notifies of sex offender status, but even that is sometimes difficult to parse out unless you're very familiar with the state's laws. For example, some people only have to register for a few years (in some states it can be as little as one or three). So a former registrant may no longer have to do so, but that can be hard to tell.
In my day job, I prosecute a lot of sex crimes, including sex crimes against children (it's a very uplifting job and not at all the reason I drink so heavily). When I'm unclear if the statute that I'm potentially convicting an Accused of will translate into a registrable offense in the state where the Accused is moving, I just call the State Attorney General's office in the state where they live and ask them. They usually have somebody whose job it is to decipher that stuff, and they're often very helpful. That's some free chicken for you.
Another good way to find out about criminal history is to ASK on your tenant application. You can also ask, without fear, about their status as a sex offender. A tenant who lies about their criminal history or sex offender status on a rental application usually isn't very sympathetic in court. And you're doing your due diligence in trying to find out, so it potentially cuts against your liability.
I think what you bring up dovetails nicely into another consideration - that of having systems for your business. "But Thadeous," you'll say, "what does establishing systems for my business have to do with the law?"
What do you check for via tenant screening with each applicant? Do you have a checklist that you go through? I would recommend that you do.
Not only can that help fend off accusations of improper discrimination later on, but doing it the same way every time can allow your paper/digital records to be entered into evidence during a trial. At trial, an out-of-court statement being offered for the truth of the matter asserted is hearsay, and is generally inadmissible evidence. If you do something THE SAME WAY EVERY TIME ALL THE TIME as part of your BUSINESS PRACTICE, then that would fall into an exception to the hearsay rule known as the "business records exception." Suddenly you can introduce documentary/digital evidence in your favor. Isn't that advantageous?
That last bit is something literally nobody but me thinks about (because I've been trying cases in court for years now, so admissibility is always on my mind), but it definitely comes in handy to do business via systems in case you ever find yourself embroiled in a lawsuit.
@Steven Clark - I'll ask the bar for an advisory opinion on the propriety of rendering non-legal landlord advice in that way. I'm pretty sure I could do it. The question is whether there's an appetite for that kind of book in the market. Maybe BiggerPockets would publish it...what do you say @Mindy Jensen? I'll author it and charge very, very, unbelievably reasonable royalty fees. Probably only around 96%. And you, Steven, will get a shoutout in the "acknowledgments" section. Win-win-win. But seriously, Mindy, let me know.
@Andrew B. - that's another really great question! That's a lawyer mind, right there, looking for every possible legal danger lurking around the corner and not just assuming that everything will go well.
Bearing that in mind, let's take a peek behind the curtain from an attorney's perspective. I can tell you the following: It would be very unlikely that many lawyers would tell you in such situations "Nah, I'm sure you'll be fine" unless they are absolutely sure (either there is a statute on point or some case law backing up their position that already answered the question) that their answer is correct. An attorney who represents you has the job of protecting you from litigation, so there's an incentive to be extra cautious. @Scott Trench mentioned earlier above about the proliferation of attorneys who these days over-recommend Series LLCs. That's in part a result of Series LLCs being complicated to set up and thus more expensive and thus more money that an attorney can charge you, part a result of it being a shiny new toy that every attorney wants to try out and set up, and part a result of attorneys wanting to provide maximum, duplicative, redundant protections for their clients (no lawyer wants to be the one who assures their client that their LLC is foolproof or to say that their proposed course of action will be fine only to later watch that client lose their business, home, car, coin collection, etc.). Some attorneys, like some landlords, are shady and just want to run up the bill. Likewise, some attorneys, like some landlords, are super cautious and want to err on the side of caution.
How can you tell which one is which and that you're getting the best legal advice? Well, that's maybe way off topic and perhaps the subject of a potential blog post.
- BiggerPockets Money Podcast Host · Longmont, CO · Member since 2014 · 7k+ posts · 10k+ votes6y
Wow, @Thadeous Larkin, that is a generous offer for sure! I'm not in charge of the publishing department, but I know a girl. Email me at [email protected] and we can chat offline.
- Member since 2019 · 1 post · 1 vote6yJust joined today and this is the first post that grabbed my attention . I cannot tell you how much this enlightened and entertained me. As a newbie I am aware there is so much to learn and so many questions I don't even know I should ask. Thank you to all the people in this thread.
- Investor · Bastrop, TX · Member since 2019 · 1 post · 0 votes6y
I realize this is a very long story extremely shortened but in regards to the original question: I suppose I would start with state specific landlording guidelines, fair housing etc... and then observe (very closely) the community and/or HOA if applicable.
Sex offenders are clearly not all homeless... I'm sure there's a right way to vet, satisfy community standards and in good conscience, rent to those who are fair to be assumed as "recovered, non-threatening, etc".
That said, the tactic I'm most comfortable with is to avoid overextending investments to the point where vacancy cannot be sustained long enough to turn down sex offenders.
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