Disclosure of Registered Sex Offenders is Not Required

Question: We purchased a nice home in a Tempe community. The seller told our real estate agent that the reason the seller was moving to another Tempe home was “to be closer to the 101 freeway.” Two weeks after we closed on our home, we learned at an HOA meeting that a registered sex offender (“RSO”) lives three homes away from our home. We have two girls ages 8 and 10 so we must now find another home. When we complained to our Realtor why we weren’t told of this RSO, our Realtor said that under Arizona law both sellers and Realtors don’t have to disclose a RSO. Further, our Realtor said that under our purchase contract we were required to investigate for RSOs on the State website if we were concerned about RSOs in our neighborhood. For families with children, disclosure by sellers of RSOs near a home is much more important than disclosure by sellers of leaky roofs and mold! Are we crazy or is that the law?

Answer: Not to be flippant, you are not crazy but that is the law! In 1983 a California appeals court ruled that a murder of a woman and four children in a home should have been disclosed by the seller to an elderly lady who purchased the home 10 years later. The failure to disclose the murders resulted in damages to the elderly lady of 20% loss in value of the home. 145 Cal.App.3d 261. California then passed a statute that said murders and suicides occurring in a home more than three years earlier did not have to be disclosed by the sellers and real estate brokers. (Cal. Civ. Code § 1710.2). The law today in Arizona is much broader and protects sellers and real estate brokers from having to disclose to a buyer of a home not only murders and suicides, but any felony that occurred in the home; plus any sex offender (whether or not “RSO”) in the vicinity; or COVID/HIV in the home. (A.R.S. § 32-2156).

Although disclosure of a material and adverse fact may not be required under A.R.S. § 32‑2156, a seller cannot lie. In a recent Court of Appeals decision (234 Ariz. 397), Glen Lerner, of the landmark Lerner and Rowe law firm, and his family with small children bought a home in north Scottsdale. The seller of the home allegedly told Lerner that the reason for the seller and his family moving was that the seller “wanted to be closer to friends.” After Lerner and his family moved into the home, Lerner then learned that an RSO lived next door. Lerner believed that the seller lied, and that the real reason for the seller moving was that there was an RSO living next door. The Court of Appeals ruled that, if Lerner could prove that the seller lied about the reason for moving, Lerner could prevail as “the law does not protect a seller who makes an intentional misrepresentation.” For example, if a seller of a home is asked whether there has been a murder in the home and the seller knows that there has been a murder in the home, the seller cannot lie by answering “no” or “I don’t know.” Instead, the seller must either answer truthfully “yes” or answer that the seller is not legally required to answer the question