Unfortunately, there are plenty of ambiguities and gray areas on this issue in the laws of most states, which typically confine disclosure obligations to the physical condition of a home, not undesirable neighbors. In Wisconsin, courts have adopted a philosophy that sellers must disclose "whenever justice, equity and fair dealing demand it," which could be construed to cover sex offenders, but is not specific on the sex-offender issue.
In California, a home seller has a duty to disclose any facts that might materially affect the desirability of a property to a potential purchaser, which can include the factual presence of a next-door sex offender. However, in the state of New York, a couple discovered a convicted sex offender lived across the street from the home they purchased. They sued the sellers for not informing them, and the courts held that neither the seller nor the agent were required to disclose that fact. Unfortunately, buyers in several other states who unwittingly moved near sex offenders have found little relief in court.
The National Association of Realtors has taken a neutral stance on the issue, stating the burden of researching neighborhood sex offenders falls on the prospective homeowner, not agents, unless such a disclosure is required by law (which is rare). However, an agent can and should, as a matter of practice, refer people to the National Sex Offender Registry or the police department for that information, NAR said in a nonbinding statement. Many sales contracts, in fact, now include disclosure information about how to research information and locations of registered sex offenders.
If I may get on a soapbox for a minute, I have to say that any agent or owner selling a house near a sex offender to a family with children who doesn't at least suggest the buyer look to the National Sex Offender Registry is shirking a moral responsibility, regardless of laws and their interpretations. That said, the issue is complicated by the listing agent's fiduciary duty to represent the best interests of the seller, which I'm sure is difficult to relate to as you are rightfully seeing red and are anguished about your kids' safety. Ironically, it is the same dilemma you may well be facing when it's time for you to sell the house, assuming the offender doesn't move first.
In many states, by the way, the agent and the seller have a legal obligation to honestly answer direct questions from the buyer regarding any registered sex offenders or other former or current criminals who live in the neighborhood. I must assume you or your agent -- in the event you used one -- did not ask the seller's agent or owner that all-important offender question. If you did and either said no, then you may well have cause for action. Be sure you check the laws in your area to determine if the agent or seller was obligated to make such a disclosure. You may need to talk with an attorney pronto to see if you have any leverage.
For all would-be buyers out there, be sure to ask your agent, the seller and the seller's agent if any actively listed or formerly listed sex offenders live in this neighborhood. If you get a "no," always follow that up with your own research on the issue.
Here's hoping the issue will become a moot one for you and your kids. Good luck.
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