Megan’s Law Q&A: Duty to disclose?

Calls to the Legal Hotline regarding Megan’s List are not infrequent. Callers want to know whether licensees have a duty to determine the presence of Megan’s Law registrants and whether the answer changes depending on the status of the licensee as a buyer’s or seller’s agent.  Another frequently asked question has to do with refusing to sell to, or even work with, Megan’s Law registrants who seek to purchase a home. Here are some common questions and their answers:

Q. How does Megan’s Law work?

To be registered, an individual must be convicted of one of several crimes related to the abuse or kidnapping of minors or various sex crimes. Registered offenders are required to keep the State Police updated on the location of their residence, their place of work and any schools at which they are enrolled. Although registration under Megan’s Law is commonly associated with being a convicted sex offender, some individuals who are registered offenders have been convicted of non-sex crimes against children.

Q. Do licensees have a duty to disclose information on sex offenders?

As a real estate licensee, while you do not have an affirmative duty under Megan’s Law to investigate and disclose the presence of registered offenders, you should be mindful that this does not serve to absolve you of all responsibility. For a buyer agent to conform to the standards of practice applicable to selling residential real estate, the buyer agent should at least be advising the buyers of their ability to determine the presence of registered offenders in adjacent and nearby properties.

As you may know, the first “Notices” page of the Standard Agreement of Sale includes a Notice Regarding Convicted Sex Offenders. This Megan’s Law notice encourages buyers to research whether any registered offenders live or work near the property they anticipate purchasing. This notice to buyers is important because Megan’s Law specifically states that there is no duty imposed on real estate licenses to disclose information regarding offenders.

Q. Can a licensee refuse to represent a buyer who is registered under Megan’s Law?

By refusing to represent a registered offender, the licensee does not violate anti-discrimination laws as long as he is not at the same time discriminating against the person by reason of some other status that would constitute a violation of law.

Because registration under Megan’s Law is based on criminal status and there is no protected class based on criminal convictions or criminal status, it is not unlawful to refuse to represent an individual based on the fact that he or she is registered under Megan’s Law.

(When discussing the topic of discrimination, you will often hear people use the term “protected class.” This term is used because anti-discrimination laws prohibit discrimination based on an individual’s membership in a “class” or category that is designated for special protection. Protected classes include: race, color, religious creed, ancestry, age, sex, national origin, non-job related handicap or disability or the use of a guide or support animal because of blindness, deafness or physical handicap.)

James L. Goldsmith  and Douglas M. Oberholser are attorneys with Caldwell & Kearns.  Mr. Goldsmith serves as general counsel to PAR.  He and Mr. Oberholser routinely provide advice and counsel to real estate licensees as two of the voices on the PAR Legal Hotline.  A substantial portion of their practice is dedicated to providing counsel on real estate matters and representing real estate salespersons and brokers in civil lawsuits.  They may be reached at CaldwellKerns.com or realcompliance.com.