It has been noted that there is no uniformity among state laws dealing with real estate disclosures regarding the location and/or proximity of registered sex offenders.
California real estate agents and brokers should appreciate that their state law (crafted with significant input from the California Association of REALTORS® [CAR]) provides them with a procedure that gives them "safe harbor" in the vast majority of situations where such disclosure might be an issue.
A CAR legal memorandum notes that under the California version of Megan's Law, "… a person who has been convicted of committing or attempting to commit certain sex crimes is required to ‘register' with the local police or sheriff's department within 14 days of release from prison. When he/she moves to another jurisdiction (within California), he/she must notify the new police or sheriff's department within five working days of moving to that jurisdiction. They must also ‘re-register' every year within five days of his/her birthday." (California Penal Code 290 et seq.)
In 2004, California enacted further legislation that requires the California Department of Justice to make specified information about certain sex offenders to the public via an Internet website (www.meganslaw.ca.gov) and to update that website on an on-going basis. Previously, the information was available only through a ‘900' telephone number and/or local law enforcement.
As to the disclosure regarding the Megan's Law website, legislation was adopted to add sections to Civil Code §2079 -- which generally spells out disclosure duties to a buyer of real estate -- regarding the provision of information about the website. It specifies that a contract to lease or rent residential property, or to purchase residential property (up to four units), must contain the following notice:
"Pursuant to Section 290.46 of the Penal Code, information about specified registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.meganslaw.ca.gov. Depending on an offender's criminal history, this information will include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides."
CAR residential lease and purchase contracts contain these notices. Anyone using a residential lease or purchase contract that doesn't contain the notice should obtain a copy of the notice and put it in an addendum to the contract.
The "safe harbor" aspect of providing this notice is contained in §2079.(b) It says that, upon delivery of the notice, "the lessor, seller, or broker is not required to provide information in addition to that contained in the notice regarding the proximity of registered sex offenders. The information in the notice shall be deemed to be adequate to inform the lessee or transferee…" Moreover, providing the notice "…shall not give rise to any cause of action against the disclosing party by a registered sex offender."
Clearly, these sections cover the vast majority of cases where the issue of the proximity of any registered sex offender might arise. Neither a seller, a landlord, nor an agent has any affirmative obligation to conduct an investigation. If they have provided the notice about the Megan's Law website, they fulfilled their duty in that regard.
Of course, if an owner or agent has actual knowledge of the proximity of a registered sex offender, then that raises different issues. Sellers, landlords, and agents have a duty to disclose known material facts that might influence the desirability and/or value of a property and that are not likely to be readily observable to the tenant or purchaser. Would the proximity of a registered sex offender be a material fact? The lawyers will tell you that it depends on the actual facts and circumstances. My advice: if you're going to err, let it be on the side of caution.