Can an association prohibit sex offenders from residing in the project?

An association recently asked me if it could prohibit a convicted sex offender, who appears on the Michigan Sex Offender Registry, from residing in the condominium premises.  It seems that a twice-convicted sex offender was being paroled and was coming to live with his mother who owned a unit in the condominium premises.  The short answer was “no,” their existing documents did not prohibit a sex offender from residing in the condominium unit.

This begs the question then, can an association provide in its documents that registered sex offenders may not reside in a unit in a condominium project?  More generally, can an association prohibit any convicted felon from residing in a unit?

The answer is not clear.  Felons generally and sex offenders in particular are not a protected class that civil rights acts (federal or state) protect against discrimination.  It is possible that a ban on ownership of a unit by a felon or sex offender would be struck down as a restraint on alienation.  However, a ban on occupancy may be upheld.  A typical set of condominium documents ban certain types of occupancy regularly:  no pet rules, leasing restrictions, prohibitions on activity that becomes a nuisance or annoyance, and so on.  

The Sex Offenders Registration Act, Act 295 of 1994, states that “[t]he legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those persons who pose such a potential danger.  However, the statute also provides that disclosure of confidential reports regarding the registered person is both a misdemeanor and gives the registered person a civil cause of action.

An association has no duty to regularly monitor the Registry, nor does it have any duty to disclose the residence of a sex offender within the community if it becomes aware of one, although an association can disclose if it wishes.  Should an association wish to disclose, it should refrain from revealing either the name of the sex offender or the owner of the unit, or the address or location where the sex offender lives, to avoid possibly liability as outlined above.  

The law here is unclear and is evolving; an association should consult with competent counsel before making a decision about whether or not to disclose the presence of a sex offender.

© Steve Sowell 2017