The pedophile next door
Should a homeowner selling his or her house be required to disclose that a sex offender lives across the street? According to an Ontario judge, the answer is: Maybe.
The purchasers of a home in Bracebridge, Ont., recently launched a lawsuit against the sellers, after the buyers learned that a neighbour had been found guilty of possession of child pornography 10 years earlier. The buyers, who have two young children, allege that the sellers, plus the entire neighbourhood, were aware of the man's past, and also claim that they would never have bought the house had they been made aware of this information.
The sellers claim they were unaware of their neighbour's criminal past; and that, even if they were aware, they wouldn't have an obligation to disclose the information, because it doesn't qualify as a hidden or latent property "defect" under the applicable law.
In general, the principle of caveat emptor, or buyer beware, puts the onus on buyers to conduct a reasonable inspection of the dwelling they plan to purchase. But how do buyers uncover the presence of a pedophile in their new neighbourhood -or, for that matter, any threatening human presence? What if a neighbour has psychiatric problems that make him more likely to be violent? What if another is a convicted arsonist? Or keeps large and dangerous dogs?
The list of potential "undesirable elements" is endless, and surely a seller cannot have the responsibility of tracking the behaviour and past of everyone on his or her entire block. Indeed, in the case of speculators, the seller might not even know another soul in the neighbourhood.
In the Bracebridge case, the sellers filed a motion to dismiss the lawsuit, but their motion was rejected because the judge found that it was not "plain and obvious" that the case would fail. Should it ultimately succeed, it would open a Pandora's box for sellers and real estate agents -and create a lot of work for lawyers, who would be hired on by purchasers seeking to back out of deals by tracking down everyone within three blocks who spent a night in jail.
No one relishes the idea of his or her children living in full view of a convicted sex offender. And it is realistic to expect that a family with young children would probably avoid purchasing a home in proximity to a pedophile. But the solution to that particular problem is not to force disclosure by sellers of this or any other facts about their neighbours. It is to oblige the government body in possession of that information -namely, the Canadian correctional system -to provide more information.
Since 2004, Canada has maintained a National Sex Offender Registry. The registry tracks the living situations of offenders after their release, allowing the state to know at all times where they live. Unlike a similar registry in the United States, however, this information is not made accessible to the public, and thus is of no use to prospective homeowners such as the couple in Bracebridge.
The argument for keeping the information confidential is that once these offenders have paid their debt to society, they should be allowed to live in the community as would any other former felon. But pedophilia is not the same as burglary or credit card fraud -otherwise, there would be registries for those criminals as well. While child sex offenders can avoid reoffending by eliminating their contact with children, they generally can never be "cured" of their compulsion. In other words, the attraction to children -and urge to reoffend -remains, and a family would understandably feel uncomfortable living in the presence of a convicted child sex offender.
Putting all of the Canadian registry data online would be excessive: It would instantly put a very specific, public, lifelong mark of Cain on thousands of citizens. (Similar laws in the United States have turned the affected individuals into jobless, isolated pariahs -and in some cases have driven them to homelessness.) A more reasonable compromise would be that prospective homeowners could apply to the government to find out whether a particular neighbourhood contains sex offenders. If the answer to this question is yes, it would then be up to the homeowner to elicit details, as far as they are known to people in the area, from the seller or his neighbours.
By this method, concerned parents can then make informed decisions about where to live, or whom their children can associate with, and sellers will not bear the responsibility for knowing the history of their neighbourhood.
The purchasers of a home in Bracebridge, Ont., recently launched a lawsuit against the sellers, after the buyers learned that a neighbour had been found guilty of possession of child pornography 10 years earlier. The buyers, who have two young children, allege that the sellers, plus the entire neighbourhood, were aware of the man's past, and also claim that they would never have bought the house had they been made aware of this information.
The sellers claim they were unaware of their neighbour's criminal past; and that, even if they were aware, they wouldn't have an obligation to disclose the information, because it doesn't qualify as a hidden or latent property "defect" under the applicable law.
In general, the principle of caveat emptor, or buyer beware, puts the onus on buyers to conduct a reasonable inspection of the dwelling they plan to purchase. But how do buyers uncover the presence of a pedophile in their new neighbourhood -or, for that matter, any threatening human presence? What if a neighbour has psychiatric problems that make him more likely to be violent? What if another is a convicted arsonist? Or keeps large and dangerous dogs?
The list of potential "undesirable elements" is endless, and surely a seller cannot have the responsibility of tracking the behaviour and past of everyone on his or her entire block. Indeed, in the case of speculators, the seller might not even know another soul in the neighbourhood.
In the Bracebridge case, the sellers filed a motion to dismiss the lawsuit, but their motion was rejected because the judge found that it was not "plain and obvious" that the case would fail. Should it ultimately succeed, it would open a Pandora's box for sellers and real estate agents -and create a lot of work for lawyers, who would be hired on by purchasers seeking to back out of deals by tracking down everyone within three blocks who spent a night in jail.
No one relishes the idea of his or her children living in full view of a convicted sex offender. And it is realistic to expect that a family with young children would probably avoid purchasing a home in proximity to a pedophile. But the solution to that particular problem is not to force disclosure by sellers of this or any other facts about their neighbours. It is to oblige the government body in possession of that information -namely, the Canadian correctional system -to provide more information.
Since 2004, Canada has maintained a National Sex Offender Registry. The registry tracks the living situations of offenders after their release, allowing the state to know at all times where they live. Unlike a similar registry in the United States, however, this information is not made accessible to the public, and thus is of no use to prospective homeowners such as the couple in Bracebridge.
The argument for keeping the information confidential is that once these offenders have paid their debt to society, they should be allowed to live in the community as would any other former felon. But pedophilia is not the same as burglary or credit card fraud -otherwise, there would be registries for those criminals as well. While child sex offenders can avoid reoffending by eliminating their contact with children, they generally can never be "cured" of their compulsion. In other words, the attraction to children -and urge to reoffend -remains, and a family would understandably feel uncomfortable living in the presence of a convicted child sex offender.
Putting all of the Canadian registry data online would be excessive: It would instantly put a very specific, public, lifelong mark of Cain on thousands of citizens. (Similar laws in the United States have turned the affected individuals into jobless, isolated pariahs -and in some cases have driven them to homelessness.) A more reasonable compromise would be that prospective homeowners could apply to the government to find out whether a particular neighbourhood contains sex offenders. If the answer to this question is yes, it would then be up to the homeowner to elicit details, as far as they are known to people in the area, from the seller or his neighbours.
By this method, concerned parents can then make informed decisions about where to live, or whom their children can associate with, and sellers will not bear the responsibility for knowing the history of their neighbourhood.
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