After taking a listing, a REALTOR® was informed by the neighbors that one of the residents in the area is listed on the Virginia State Police Sex Offender Web site. She wants to know if she must disclose this information to potential purchasers.
A few years ago the General Assembly in Richmond passed a Megan's Law statute that was intended to provide the public with more direct access to information on sex offenders. As part of this public policy initiative, the Virginia Residential Disclosure Act was amended to require the following:
¤ 55-519. Required disclosures
"The disclosure and disclaimer forms shall contain a notice to purchasers that whether the owner proceeds under subdivision 1 or 2 of subsection A [whether the owner provides the purchaser with a disclosure or disclaimer form mandated by the state], purchasers should exercise whatever due diligence they deem necessary with respect to information on any sexual offenders registered under Chapter 23 (¤ 19.2-387 et seq.) of Title 19.2, including how to obtain such information."
Real estate licensees acting as listing agents in Virginia need to ensure that the purchaser is provided with either the Virginia Residential Property Disclosure or Virginia Residential Property Disclaimer form to ensure that they have met their legal obligations regarding disclosure of this issue. Both forms contain information about how the prospective purchaser can obtain information from the Virginia State Police regarding sex offenders in their area.
In discussing the legal issues related to this question with Lawrence E. Marshall (Lem), Legal Counsel to the Virginia Association of REALTORS® , he brought up two points related to this question that I wanted to relay to our members.
First, Mr. Marshall emphasized that the REALTOR® should avoid representing any purchaser as a dual agent in this transaction. While a listing agent under the law would only have to disclose the information required under the Virginia Residential Property Disclosure Act (i.e. provide the information on how the purchaser can perform their own due diligence in regards to this issue), Mr. Marshall suggested that an agent representing a buyer would have to inform their clients of possible sex offenders in the area.
Second, he argues that Standard of Practice 2-5 of the Code of Ethics removes "sex offenders" from the list of pertinent facts that need to be disclosed under Article 2 of the Code of Ethics because this type of disclosure is specifically referenced in Virginia statutes. However, he does note that listing agents could not lie about this information if directly asked a question on this issue since Article 1 of the Code of Ethics would still apply.
I would also add two additional pieces of information for our members to consider regarding this issue. First, while real estate agents are frequently asked to advise clients on a wide range of issues related to purchasing a property, advising a client about the issues related to the dangers of sex offenders in the area is probably outside the scope of their real estate license because it deals with complex legal issues.
When looking at the information on the Virginia Sex Offender Web site, notice that only general information is provided. The average REALTOR® may not have a strong enough background in Virginia Criminal Statutes to distinguish between the various criminal violations listed on the Web site and advise purchasers on the potential threats of these individuals. After all, there have been cases in other states where the criminals listed on sex offender Web sites were convicted of crimes ranging from public nudity in the 1970s (remember that silly fad of streaking?) to teenage sweethearts having sex before either of them were legally considered consenting adults.
These types of crimes are substantially different from the very serious crimes regarding child molestation and rape that are of very real concern to members of the public. However, REALTORS® are not experts in this area and should refer their clients to the law enforcement officials or legal experts who could assist the purchasers in understanding the differences between all the criminal statutes involved and the possible danger posed by individuals convicted of these crimes.
Second, I would note also that the U.S. Supreme Court has agreed to hear a legal challenge to the Megan's Law statute in another state. It is possible that the Virginia Statutes discussed above could change depending on the outcome of the case. Therefore, members should remember that this area of the law may still be evolving and that they should look for future updates on this information in NVAR's InfoLink and Update Magazine.
The author would like to give full credit to VAR Legal Counsel Lawrence E. Marshall for the vital information he provided in this article.