• “Megan’s Law” Update: Website Information on Registered Sex Offenders


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    • Abstract: “Megan’s Law” Update: Website Information on Registered Sex Offenders------------------------------------------------------------------------Member Legal ServicesTel 213.739.8282Fax 213.480.7724February 18, 2005 (revised)

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“Megan’s Law” Update: Website Information on Registered Sex Offenders
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Member Legal Services
Tel 213.739.8282
Fax 213.480.7724
February 18, 2005 (revised)
Copyright© 2005 CALIFORNIA ASSOCIATION OF REALTORS®(C.A.R.). Permission is granted to C.A.R.
members only to reprint and use this material for non-commercial purposes provided credit is given to the
C.A.R. Legal Department. Other reproduction or use is strictly prohibited without the express written
permission of the C.A.R. Legal Department. All rights reserved.
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TABLE OF CONTENTS
Introduction
I. Changes to Existing Law
II. Duties and Obligations in Real Estate Sales Transactions
III. Duties and Obligations in Real Estate Lease Transactions
Introduction
On September 24, 2004, California enacted AB 488 (Parra), which requires the California Department of
Justice to make specified information about certain sex offenders available to the public via an Internet website
and to update that website on an ongoing basis. The website is now currently active at
www.meganslaw.ca.gov. Previously this information was available through a “900” telephone number and
through local law enforcement agencies. “Megan’s Law” requires that a notice of the availability of this
information on the database be disclosed to the buyer of residential property, and to the tenant of residential
property. The reporting requirements have not changed under the new law. This legal memorandum is
designed to provide guidance to REALTORS® with questions concerning the new and existing disclosure
obligations regarding sex offender information as they relate to their real estate practice.
I. Changes to Existing Law
Q 1. What is the new change to Megan’s Law?
A. The California Legislature recently passed and the governor signed AB 488 (Parra) which adds California
Penal Code §290.46 requiring the California Department of Justice to create a website, accessible to the
public, which will include specified information about certain sex offenders. The statute also delineates the
penalties associated with the misuse of the new information.
Q 2. What information will be on the website?
A. The information contained about a specific sex offender will depend on the status of the sex offender. For
the most serious offenders, the sex offender’s exact address, name, any aliases, photograph, physical
description, gender, race, date of birth and criminal history will be included. This category includes: (1) virtually
all offenders who have been convicted of committing a lewd act with a child under the age of 14 or whose
crime involved force or fear as an element; (2) virtually all offenders who have been convicted of two or more
sex offenses in separate trials; and (3) “sexually violent predators”. Certain other offenders will have the
county of residence and the ZIP code of the offender but not the exact address. Less serious offenders may
apply to the Department of Justice for exclusion of their information from the website. Information about the
less serious offenders will continue to be maintained through the “900” number, the Department of Justice, and
local law enforcement agencies.
Q 3. Where can I access the information on the website?
A. The California Department of Justice will maintain the website at www.meganslaw.ca.gov which will be
updated on an ongoing basis. The Department will also have discretion about the translation of the information
on the website into other languages besides English. Any person who is required to register as a sex offender
is not entitled to access the website, and if he or she accesses the website, is punishable by a fine of $1000,
six months imprisonment in county jail, or both.
Q 4. How may the information be used?
A. The information contained in the website, as well as the information available from other Megan’s Law
sources, may be used only to protect a person at risk. Except to protect a person at risk or as authorized
under any other law, use of the information for any purpose relating to the following is prohibited: (1) health
insurance, (2) insurance, (3) loans, (4) credit, (5) employment, (6) education, scholarships or fellowships, (7)
housing or accommodations, and (8) benefits, privileges or services provided by any business establishment.
Information obtained from the database cannot be used to harass or intimidate a sex offender, or a relative of
the sex offender. “Person at risk” is not defined under the statute and would depend on various factors,
including the nature of the crime that the sex offender committed.
Q 5. What are penalties for the misuse of the information contained on the website?
A. Any person who uses the information contained in the website to commit a misdemeanor is subject to an
additional fine of not less than $10,000 and not more than $50,000, in addition to any other applicable
punishment for that misdemeanor. Any person who uses the information to commit a felony shall be punished
by a five year term of imprisonment in state prison, in additional to any other punishment for that felony.
II. Duties and Obligations in Real Estate Sales Transactions
Q 6. What are the disclosure obligations of real estate brokers and sellers of real property under this
law?
A. California Civil Code §2079.10a states that any contract for the sale of residential real property containing
one to four units shall contain a notice informing the buyer of the existence of a public database maintained by
the California Department of Justice, and how to access this database through local law enforcement or a
“900” phone number. The exact language of the notice is stated in subsection (a) of this statute, and that
language is contained in all current versions of C.A.R. purchase agreements and residential leases. The
statute does not specifically require real estate brokers or sellers to provide this notice, but the statute provides
a safe harbor for brokers and sellers if the notice is contained in the contract.
Q 7. Has the new law changed the statutory obligation of disclosure?
A. No. Once the specified notice is given, the notice is deemed to be sufficient to notify the buyer of the
statewide database, and sellers, landlords and brokers are not required to provide any other information
regarding the proximity of registered sex offenders, absent actual knowledge. Nothing in AB 488 (California
Penal Code §290.46) has changed the statutory obligations of disclosure.
Q 8. Do real estate brokers have a duty to disclose the existence of the Internet website?
A. Nothing in AB 488 specifically imposes any duties on real estate brokers or agents to disclose the existence
of the website containing information about registered sex offenders. However, to best protect the interests of
participants in a residential sale, real estate brokers may adopt a policy to inform prospective buyers of the
existence of this new website.
Q 9. What disclosures are required if either the seller or the broker is actually aware of a registered
sex offender living in the area?
A. Both the seller and the broker have a duty to disclose material facts under California law. Under California
Civil Code §2079.10a, providing the notice of the existence of the Megan’s Law database does not insulate
either the seller or the broker from otherwise disclosing material facts of which either is aware. Based on these
standards, the answer depends on the exact facts and circumstances regarding the information known.
Q 10. What disclosures are required if the broker learns that the buyer is a registered sex offender?
A. The buyer’s broker probably would not be required to disclose that the buyer is a registered sex offender. It
would likely not be a material fact to the seller, nor impact the sale of the property from the seller’s
perspective. Since the buyer’s broker has a fiduciary duty to the buyer, then the broker probably should not
disclose this information as this might be a breach of his/her duty to the client.
Q 11. What disclosures must be given to the seller or listing agent by brokers representing the buyer
who have knowledge of a sex offender living in the area?
A. The selling agent has no duty either under common law or California statutes, to disclose the exact
location of a sex offender to the seller or to the listing agent. However, if the proximity of a registered sex
offender is the reason that buyer is not purchasing the property, the buyer is not prohibited from disclosing the
reason for cancellation of the purchase contract.
Q 12. Should a real estate agent print out a copy of the information from the Internet site and provide
the information to his/her client?
A. The answer to this question depends on what the client will do with the information. If the client will use the
information for an invalid reason (see Question 4), then the agent might be seen to be in violation of California
Penal Code §290.46. Consequently, a prudent agent will disclose the existence of the website or other
sources where his or her client can access the information, but probably should not print out a copy of the
information for the client.
III. Duties and Obligations in Real Estate Lease Transactions
Q 13. What are the disclosure obligations of real estate brokers or property owners in the leasing of
real property?
A. California Civil Code §2079.10a states that any contract for the lease of residential real property shall
contain a notice informing the tenant of the existence of a public database maintained by the California
Department of Justice, and how to access this database through local law enforcement or a “900” phone
number. The exact language of the notice is stated in subsection (a) of this statute, and that language is
contained in all current versions of the C.A.R. lease contracts. The statute does not specifically require real
estate brokers or property owners to provide this notice, but the statute provides a safe harbor for brokers and
property owners if the notice is contained in the lease contract.
Q 14. Has the new law changed the statutory obligation of disclosure to a tenant?
A. No. Once the specified notice is given, the notice is deemed to be sufficient to notify the tenant of the
statewide database and provides a safe harbor to real estate brokers and property owners for further
notification, absent actual knowledge of a sex offender. Nothing in AB 488 (California Penal Code §290.46)
has changed the statutory framework of disclosure. However, to best protect the interests of participants in a
residential lease transaction, real estate brokers and property owners can adopt a policy to inform prospective
tenants of the existence of the new website that contains sex offender information.
Q 15. Should a landlord or property manager check the Megan's law website to see if any of their
current tenants are on the database?
A. No. There is no statutory or case law reuqiring a landlord or property manger to check to see if current
tenants are on the Megan's law database.
Q 16. Would it be prudent for a landlord or property manager to check the Megan's law website to see
if a prospective tenant is on the database?
A. Perhaps, so long as the information obtained from the database is not used to deny accommodations to the
prospective tenant solely based on the fact that the person is on the list, unless it is necessary to protect a
"person at risk." There is no statutory or case law requiring a landlord or property manager to check to see if a
prospective tenant is on the Megan's law database.
Q 17. What is the disclosure obligation of the landlord or broker if the landlord or broker has actual
knowledge of a sex offender?
A. Any landlord or broker who has actual knowledge of the location of a current registered sex offender does
have a duty to disclose this information to a tenant, assuming that it is a material fact. If a sex offender moves
into the area while tenants are occupying the landlord’s property and the landlord or the broker (property
manager) becomes aware of this fact, then the landlord or the broker would be obligated to notify current
tenants of the location of the sex offender if necessary to protect a person at risk.
Q 18. If a current tenant has been charged with (but not convicted of) committing a sexual offense,
should the other tenants be notified?
A. No. At this point the charge of a sexual offense is an allegation and the facts have not been proven.
Q 19. What is the disclosure obligation of the landlord or broker if a sex offender is currently living in
the unit that will be rented out?
A. The answer to this question depends on whether this would be a material fact to the prospective tenant.
Since the sex offender will not be living at that address any longer, the information that the previous tenant was
a registered sex offender would not appear to be a material fact. However, as prospective tenants may enter
into the property and be at risk if the sex offender is there, then for the purpose of the safety of the prospective
tenant, this information should probably be disclosed, or other precautions should be taken when the
prospective tenant is viewing the property if such prospective tenant might be at risk.
Q 20. Would a landlord or property manager need to disclose that a previous tenant of the unit (not
presently a tenant) was a registered sex offender?
A. The fact that a previous tenant was a registered sex offender would likely not be a material fact about the
property that would need to be disclosed. However, if the sex offender committed a crime in the unit in
question, then that information might be a material fact that would likely need to be disclosed.
Q 21. Can a landlord deny a rental/lease application from a prospective tenant who is a registered sex
offender?
A. A rental application can ask whether any proposed occupant has been convicted of or plead no contest to a
felony, and can reject a prospective tenant on the basis of the conviction of a felony. Information from the
database cannot be used to discriminate against a prospective tenant if the tenant is not guilty of a felony. If a
registered sex offender is not guilty of a felony, then the landlord would only be allowed to use this information
to protect a person at risk.
Q 22. Would a landlord have the right to terminate a tenant who the landlord discovers is a registered
sex offender?
A. If the information on the tenant’s application was false and the landlord rented the unit to the tenant based
on that false information, then the landlord would have the right to terminate the tenancy. If the tenant has
violated the law and become a sex offender during the tenancy, the right of the landlord to terminate the
tenancy would depend on the terms of the lease agreement. (For example, the C.A.R. Residential Lease or
Month-To-Month Rental Agreement has a provision that states that the tenant shall not “violate any law or
ordinance” (Section 14A) which would give the landlord the right to terminate the tenancy.)
Q 23. Are the disclosures on rental agreements contained in current versions of C.A.R. contracts
sufficient for disclosure?
A. Yes. The laws relating to disclosure of the Megan’s Law database have not changed under the new law,
so the Megan’s Law database disclosure notices contained in the current versions of C.A.R. contracts are still
sufficient for meeting disclosure obligations, assuming that neither the agent nor the owner has actual
knowledge of a registered sex offender living nearby. The Standard Forms Committee is currently reviewing
whether to make a change to the current C.A.R. forms. If any new legislation changes the required disclosure,
then C.A.R. will modify the disclosure statement contained in the C.A.R. forms to comply with any statutory
requirements.
Q 24. Where can I obtain additional information about this and related subjects?
A. More information is available through the Office of the Attorney General and the California Department of
Justice at www.meganslaw.ca.gov. This legal memorandum is just one of the many legal publications and
services offered by C.A.R. to its members. For a complete listing of C.A.R.’s legal products and services,
please visit C.A.R. Online at www.car.org.
Readers who require specific advice should consult an attorney. C.A.R. members requiring legal assistance
may contact C.A.R.’s Member Legal Hotline at 213.739.8282, Monday through Friday, 9:00 A.M. to 6:00 P.M.
C.A.R. members who are broker-owners, office managers, or Designated REALTORS® may contact the
Member Legal Hotline at 213.739.8350 to receive expedited service. Members may also fax or e-mail inquiries
to the Member Legal Hotline at 213.480.7724 or [email protected] Written correspondence should be
addressed to:
California Association of REALTORS®
Member Legal Services
525 South Virgil Avenue
Los Angeles, California 90020
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The information contained herein is believed accurate as of February 18, 2005. It is intended to provide
general answers to general questions and is not intended as a substitute for individual legal advice. Advice in
specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal
questions should seek the advice of an attorney.
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