Buyer, sellers, and real estate agents have a duty to disclose “material facts” regarding the property and transaction to all the parties involved.  Material facts include facts about the property, the ability of a party to complete the transaction, the ability for a party to use the property for a particular purpose and some facts that relate to the property or the neighborhood. Notice I said “some” facts that relate to the property or the neighborhood.  There are numerous material facts that “relate” to a property but not all are considered material facts, therefore not all fall into a category that a party must disclose.  

So what about sex offenders living nearby? Is that a material fact that the parties have a duty to disclose and must disclose?  The mother in me says, “Of course the fact that there is a sexual offender living next door is a material fact.”  I have heard it from buyers too.  “I would never have bought the house had I known he lived next door.”   However, the lawyer in me knows the law does not consider it a material fact so neither the seller nor the real estate agent has a duty to disclose the fact that a sexual predator lives nearby.

If the seller or agent is asked if they have any knowledge of sex offenders being close by, they do not have the duty to disclose the proximity of a sexual offender. Parties may not knowingly make a false statement.  Making a false statement is never the right option. But they do have three options:  

  1. Decline to answer 
  2. Respond that registration of sex offenders is public record and the person inquiring can check for himself or herself
  3. Answer truthfully  

Therefore, for buyers, remember agents and sellers are not required to volunteer to a prospective buyer (or a tenant in a rental situation) information that a registered sex offender resides near a property.  So what should a potential buyer do?  Ask the agent or seller if they have any knowledge of your concern.  They may decline to answer or they may not know about the proximity.  But most importantly, I recommend buyers check the North Carolina Department of Public Safety Sex Offender Registry ( either before placing an offer on a home or at least during the due diligence period of their contract if they want to know how close they are to registered sex offenders. 

Published by Susan R. Benoit on May 13, 2016