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Can Your HOA Bar a Buyer With a Criminal Record?

When you buy a home, you want to feel safe in your neighborhood. Homeowners’ associations (HOAs) set rules and guidelines by which residents of a community or neighborhood must live, but do HOA rules cover potential residents with criminal records?

Background Checks Could Represent Discrimination

Writing for the Los Angeles Times, Donie Vanitzian reports that HOAs might not be able to run background checks on prospective buyers or deny access to homes in a community based on a criminal record. According to Vanitzian, such policies could violate anti-discrimination laws.

Nearly one-third of the American population has some type of criminal record, and there is a disproportionate number of people of color with criminal backgrounds. Consequently, to deny someone the ability to buy a house based on his or her past criminal history could violate discrimination laws. While criminals do not represent a protected class, minorities do.

HUD Promotes Criminals’ Ability to Find Safe Housing

Vanitzian also notes that the Department of Housing and Urban Development (HUD) has released several statements regarding people with criminal histories and their rights with regard to housing. When someone who has been arrested or convicted of a crime returns to society, he or she needs to find somewhere to live. If every HOA created policies that barred people with records from owning homes, those people could never find a place to live.

Housing providers, such as HOAs, can violate the Fair Housing Act even if they don’t intend to do so. Essentially, rules that violate prospective buyers’ rights could constitute a violation and result in fines as well as civil action. Vanitzian warns HOAs and other housing providers to avoid using “stereotypes or generalizations” when creating rules, as they can lead to discrimination claims and cause housing problems for a large portion of American society.

Liability Relates to Foreseeability

Some HOAs have come under fire for failing to protect residents in a community after someone with a criminal record has burglarized a home or assaulted a resident. However, there’s no strict legal guidelines for HOAs that might want to bar buyers with criminal records.

The problem lies in foreseeability. Just because someone has committed an offense in the past does not mean that he or she will repeat that same offense — or any other. Therefore, denying someone the right to live in a community based on past transgressions could create problems on several levels.

Furthermore, lawsuits filed against HOAs and other housing providers have had mixed levels of success. Some have been settled out of court, while others have been denied based on lack of evidence. When HOAs attempt to keep criminals out of neighborhoods, they might want to protect their potential liability, but case law doesn’t suggest that they would bear responsibility for an individual’s criminal actions.

Criminal Records Encompass a Variety of Crimes

The phrase “criminal record” doesn’t provide much information. Crimes can range from non-violent crimes, such as driving a vehicle on a suspended license, to extremely violent crimes, like premeditated murder, with plenty of other offenses in between.

Certain crimes, such as sex offenses, might raise more red flags with HOAs and existing homeowners. One 2013 case in Texas dealt with this specific issue. An HOA attempted to ban a sex offender from living in a neighborhood, but the family fought the case, stating that he was a “low risk.”

Several factors can contribute to a criminal record, which is why the issue of HOAs banning certain individuals from buying homes can become complicated.

Neighborhood Safety Issues Can Come Into Play

As mentioned above, convicted criminals with violent pasts might present a danger to a neighborhood. Sex offenders, murderers, and people who have been convicted of serious assault charges might present the danger of recidivism.

However, neighborhoods can also protect themselves with help from law enforcement. Communities that set up neighborhood watch programs, ask local precincts to conduct regular drives through the neighborhood, and educate homeowners about safety might make themselves less likely to become victimized.

HOAs in some states might be able to restrict residents based on the level of criminal offense. For instance, landlords can often deny tenant applications when prospective tenants have felony convictions on their records. Buying a house is different from renting a home, but the same rules might apply. However, housing providers risk facing lawsuits and other legal issues, even if they eventually prevail in court.

A Duty to Inform Might Exist

In addition to setting up neighborhood watch programs and communicating with law enforcement, HOAs and residents can also keep track of criminals in their communities. Sex offenders, for instance, must often inform their closest neighbors of their status. The rules vary by state, so you can check the laws in your jurisdiction.

Additionally, many states have registries that allow citizens to find out where sex offenders live. Homeowners might decide to sell and move if they live too close to convicted criminals, especially if they have children or if they’re not sure of their own safety.

Private Residents Can Conduct Research Themselves

If you’re concerned about a new resident or potential buyer in your neighborhood, you can voice your concerns to the HOA. You also might have the right to investigate the new resident’s background on your own. Based on what you find, you can take extra precautions to protect your family, or you might decide to move to another neighborhood.

A background check can include information about a person’s past, including his or her criminal record. Other information, such as known aliases and previous residences, can help citizens make informed decisions about where they live. The more you know about the people in your life, the better equipped you become to protect yourself adequately.

Background checks can also extend to people who live in nearby communities. For instance, if you know a sex offender lives nearby, you can learn more about the specific offense.

Many citizens worry about living near people with criminal backgrounds. However, certain offenses remain more serious than others, and HOAs have to protect their own interests when investigating potential residents, running background checks, or taking other steps that could violate an individual’s rights.