By Phillip C. Querin

Megan’s Law was enacted in 1996 after seven-year-old Megan Kanka was raped and murdered by a sexual predator. It requires: (1) The registration of sex offenders, and (2) Public notification of private and personal information regarding registered sex offenders. Individual states are allowed a certain amount of discretion in establishing the criteria for public disclosure.

In Oregon, the legislature first authorized the designation of “predatory offender” in 1993. Today, a “predatory sex offender” is defined as a person who “…exhibits characteristics showing

a tendency to victimize or injure others and has been convicted of a sex crime (as further defined in ORS 181.594), has been convicted of attempting to commit one of those crimes or has been

found guilty except for insanity of one of those crimes.” ORS 181.585(2) provides for the use of

a sex offender risk assessment scale approved by the Department of Corrections in determining

whether a person should be designated as a “predatory sex offender.” Because it bears such a

stigma, Oregon courts give parolees a procedural due process right to a hearing to challenge the designation. Constitutional challenges to the predatory sexual offender designation and the community notification provisions of the law have uniformly failed.

After a person is deemed to be a predatory sex offender, Oregon law provides that within ten days of determination, the agency supervising the offender is required to notify the Oregon State Police with relevant information regarding the individual, including their residence, identity, physical description, photograph, and a variety of other relevant facts. This information may, upon request, be made available to the public. When supervision is terminated, the State Police are again notified.

Unless it is determined that doing so would “substantially interfere with the treatment or rehabilitation of the supervised person…” ORS 181.587(1) provides that the supervising agency is required to make appropriate information (including those facts provided to the State Police summarized above), to “any person upon request.” See,

Under certain circumstances, the Oregon State Police, county sheriff or city chief of police are authorized to notify the public that a person is a predatory sex offender if the offender is no longer supervised.

ORS 181.586 provides for notice by the supervising agency (e.g. State Board of Parole, Department of Corrections, etc.) to “appropriate persons” when an individual on parole or certain other types of supervision, has been determined to be a predatory sex offender. The term “appropriate persons” include, among others, “residential neighbors and churches, community parks, schools, convenience stores, businesses and other places that children or other potential victims may frequent” as well as any “prior victim of the offender.” Notification may include the offender’s photograph, their name and address, a physical description, including age, height, and weight, type of vehicle the person is known to drive, and other information, including the name or telephone number of the person’s parole and probation officer.

What does all this mean to Realtors®? Are they required to disclose the presence of registered sex offenders in a residential neighborhood? ORS 696.880 provides that nothing in the sexual offender notification laws, and nothing in the licensing obligations for real estate agents, creates an obligation on the part of a licensee to disclose to a potential purchaser of residential property that a convicted registered sex offender resides in the area. Essentially what this means is that the failure to disclose such facts to a purchaser cannot provide the basis for legal action, since there is no affirmative obligation to disclose the information.

As surprising as this seems, what the statute does not say is noteworthy. It does not say that information regarding the proximity of a registered sex offender may not be voluntarily disclosed, if known. Moreover, it does not say that if asked, a licensee may lie to the potential purchaser and deny the existence of a sex offender who lives nearby. Registered sex offenders are not members of any protected class, so disclosure in most cases, would not constitute a violation of any Fair Housing laws.

It is hard to argue that most potential purchasers would not want to know if there was a registered sex offender in the neighborhood. But the problem is that if a licensee is asked about the presence of known sex offenders, he or she may take on additional liability if they undertake to investigate the matter and give erroneous information to the purchaser. Just because the law says that there is no obligation of disclosure, does not mean that it is permissible to give out wrong information.

Rather, there seem to be two instances in which ORS 696.880 squarely applies: (1) Where the licensee does not know and does not check, or (2) Where the licensee knows but does not disclose. In both of these cases, ORS 696.880 should protect the licensee from liability. It would also seem that there are two instances in which liability could be created, notwithstanding ORS 696.880: (1) Where the licensee knows of the presence of a sexual predator in the neighborhood, but denies it when asked by the purchaser, or (2) Where the licensee does not know either way, makes an inquiry, and gives the purchaser erroneous information.

Because ORS 696.880 only seems to protect real estate agents, and not their sellers, ORS 93.275 was created. This statute contains a list of conditions affecting real property deemed not material to the transaction. Subsection (1) (d) addresses “The fact or suspicion that a convicted sex offender registered under ORS 181.595, 181.596 or 181.597 resides in the area.” While this statute creates an added layer of protection to real estate agents as well as sellers of residential property, it does not – in my opinion – authorize affirmative misrepresentations. Nor will it excuse the dissemination of erroneous information. Much like 696.880, which simply states that real estate licensees have no duty of disclosure, ORS 93.275 seems to reach the same result by saying that the information is “not material.” Accordingly, so long as the buyer does not ask, it appears that both seller and agent are not required to disclose.

Of course, these statutes shielding homeowners and sales agents from liability could raise certain fiduciary duty dilemmas, say, where the listing agent knows there is a sexual predator in the neighborhood, but the seller instructs him/her not to disclose it to potential buyers. Since the agent is duty-bound to be obedient to the instructions of the principal, it would seem that the request would have to be honored. The only alternative would be for the listing agent to withdraw from representation. Withdrawal would seem to be a far better alternative than to disobey the seller and create the risk of civil (and perhaps licensing) liability if a sale-fail results from the unauthorized disclosure.

To some degree, how Realtors® deal with sexual predator issues is a matter to be determined by

each licensee’s own company policy. However, as with so many other areas in which Realtors®

are not required to be experts, it would seem that the safest course of action is for licensees to encourage their clients to personally go directly to the sources where such information may be obtained. Generally, this means checking with the local and state police, thoroughly searching public information on the Internet, and inquiring within the neighborhood itself. Since potential liability to a licensee can be so great if one gives their buyer-client erroneous information, this is one situation where purchasers should be encouraged to do their own homework. It also eliminates the ethical dilemma that accompanies nondisclosure, since neither ORS 696.880 nor ORS 93.275 prohibit real estate agents from affirmatively recommending that their clients exercise their own due diligence on the sexual predator issue.