Property owners are presented with a myriad of issues when considering leasing to a registered sex offender. Under Indiana law, certain sex offenders and sexually violent predators have a duty to register certain information with their local law enforcement authority. See I.C. § 11-8-8 et seq. That information is then maintained in a database known as the “Sex and Violent Offender Registry” (the “Registry”) which is overseen by the Indiana Department of Correction.

There is no law in Indiana that requires a property owner to search the Registry before leasing to a prospective tenant. However, conducting such a search may be considered best practice when leasing to a tenant with a criminal history.

Despite not having a statutory duty to search the Registry, if an apartment were to lease to a registered sex offender without having searched the Registry and that sex offender tenant later committed a sexual or violent crime against another tenant, that tenant may have grounds to sue the property owner for negligence depending on the factual circumstances.

One safeguard would be to conduct a search of the Registry through a criminal background check before leasing to a prospective tenant and/or asking on a rental application whether the prospective tenant is currently required to register themselves on the Registry. The magnitude of this burden is relatively low as it is merely an additional administrative burden in the application process. Another safeguard might be to only lease an apartment to the registered offender that is not in the same building as any children and that is not near any of the common amenities that might attract children, such as a playground, pool or clubhouse. Another safeguard might be to provide notice to prospective tenants that they would be moving into a community with a registered offender. Please note, that your community should determine the proper safeguards, policies and procedures along with ownership and your property’s legal counsel, given the complexity of the issues involved.

Under IC § 35-42-4-11, it is a crime for an “offender against children” to knowingly or intentionally:

(1)“reside”3 within 1,000 feet of:

a. School property;
b. A youth program center;
c. A public park; or
d. A day care center licensed under Indiana Code § 12-17.2;

(2) Establish a residence within one (1) mile of the residence of the victim of the offender’s sex offense; or

(3) “reside” in a residence where a child care provider (as defined by Indiana Code § 31-33-26-1) provides child care services.

Nothing in the statute requires a property owner to abide by these provisions in leasing to a registered offender. However, for properties that fall within 1,000 feet of the aforementioned locations, it may be best to be mindful of these restrictions when screening a potential tenant.

There is no statute in Indiana that requires a sex offender, or the property owner of a sex offender, to notify the offender’s neighbors of their registration with the sex or violent offender registry.

If the property owner does notify existing tenants, do they have a right to terminate their respective lease? Though there is no Indiana case law on the question, an opinion from New York suggests there may be such a right to terminate the lease. See Knudsen v. Lax, 842 N.Y.S.2d 341 (2007).

If a property owner intends to refuse to rent to a registered sex offender, another factor that must be considered is compliance with the Federal Fair Housing Act and Indiana Fair Housing Act (I.C. § 22-9.5-5 et seq.). “Sex offender” is not a protected class under the Federal Fair Housing Act or the Indiana Fair Housing Act. This is a crime that is entirely independent of race, so housing providers can deny sex offenders from properties without placing a burden on a certain race or other protected characteristic.

As indicated above, if it can be shown that a policy of refusing to rent to registered sex offenders is “necessary to serve a substantial, legitimate, nondiscriminatory interest”, such as protecting children who live at the property from being victimized by the registered sex offenders, the property owner is unlikely to face liability under the Fair Housing Act.

In sum, property owners have no statutory obligations under Indiana law to search the Registry before leasing to a particular tenant, to notify tenants that the property owner is leasing to a registered offender, or to place a registered offender tenant in a location without children. However, lack of statutory obligation does not necessarily suggest best practice. On the one hand, there is a viable argument that a property owner would be acting negligently in leasing to a registered offender tenant without first running a search on such tenant in the Registry. On the other hand, if a property owner is going to proceed with running prospective tenants through the Registry, there must be policies and procedures in place addressing how to proceed if the prospective tenant is a registered offender. Additionally, when running a prospective tenant’s name through the Registry, be mindful that the search parameters are by county. If the prospective tenant is moving from Hendricks County to Marion County, for example, a search in Marion County will not identify that prospective tenant. Best practice would be to search for the prospective tenant in the county from which they are moving.