|
Edited on Fri Nov-23-07 03:36 PM by happyslug
This is a private action, someone who buys the property does NOT buy the right to sell it to someone who is a "Sex offender". These restrictions can be enforced by going to court. And given the state has the right to impose "reasonable" restrictions on Sex Offenders, the courts will enforce these restrictions. The only exception is if the Deed Restriction, if it was a stature, would be unconstitutional. The best example is the ruling by the US Supreme Court on Deed restrictions that forbidden selling the land to "non-whites". That was ruled to be unconstitutional for the courts to enforce for it such racial deed restrictions for such enforcements is state action to enforce the deed restriction and as such is unconstitutional. The states can NOT discriminate against people on grounds of Race. Prior to the 1964 Civil Rights Act it was illegal for the STATE to discriminate but private people could. Court enforcement of deeds restrictions was unconstitutional even before the passage of the 1964 Civil Rights Act.
Here there is NO constitutional Protection for Sex offenders (the 13th, 14th and 15th Amendment were passed to force both the Federal Government and the State Government treat blacks just like Whites, thus the above decision, but there is no similar constitutional provisions that covers Sex Offenders per se, through the provisions protecting the rights of ALL citizens also apply to sex offenders).
Thus, such deed restrictions are constitutional, even if they exclude sex offenders from the town (unlike Zoning laws and other Government restrictions which, if the law prevents someone from living in the town the law can be ruled to broad and thus unconstitutional).
The best comparison is with deed Restrictions the prevent anyone from selling alcohol from the land. Can the land still be used by the buyer? The answer is yes. Did the buyer knew of the Restriction? Yes, it is in the deed he buys the property with OR is in a prior Deed on record in the courthouse (and any buyer MUST check the prior deeds to make sure the seller owns the property and learn, what liens are on the property including any deed Restrictions). Such, no alcohol provisions where quite common in the late 1800s and early 1900s. The adding of such restrictions ended with prohibition (Why put in such a provisions when no alcohol could be sold anyway?) and never resumed with the repeal of Prohibition, but such provisions do show up every so often to this day. The Founder of the Borough of Moxham (Now part of the City of Johnstown Pennsylvania) had such provisions on ALL PROPERTIES in the borough. The founder first purchased the land, put in roads and then sold the house plots with the Deed Restriction). Thus you have no bars in the former Borough of Moxham do to these deed Restrictions. Please note right on the each of the borders of the old Borough of Moxham is a bar. These bars gets people to believe the deed restrictions do not apply, till they find out the deed restrictions are still valid and the Bars are located on land OUTSIDE the old Borough of Moxham and never had the restrictions put in their deeds (all are located in the City of Johnstown).
Anyway, the Alcohol deed restrictions have always been upheld, the same with these provisions regarding sex offenders. As a private action between private individuals such deed restrictions are legal. Given that the restrictions does NOT impose on the state any enforcement provision the state does NOT otherwise have, the Deed Restrictions are constitutional.
Another comparison is the recent Georgia Supreme Court ruling on such provisions PASSED AS A ZONING LAW (Or a provision of the Sentence, I have not read the decision as to what was the rationale behind the Statute). Unlike these Deed Restrictions, those were laws imposed on people without their consent. As such it restricted to whom the owner could sell his property to, while the owner of the property previous had such a right AND he received no compensation for the lost of the right to whom he could sell the property to. With a Deed Restrictions the Owner of the property WILL NEVER HAVE THE RIGHT TO SELL THE PROPERTY TO A SEX OFFENDER. That "Right" to sell the property to a Sex offenders was retained by the original owner of the property, the present owner NEVER had that right, thus it is NOT a taking. The present owner NEVER had the property right to sell the property to a Sex offender (He or she can sell the property to anyone else, but not a sex offender). Thus if a Sex Offender wants to buy the property he has to get two deeds, one from the present owner of the property and a second deed from the original owner to get the right to buy it as a sex offender). If a present owner of the property becomes a convicted Sex offender, he retains his right to sell the property but he never had the right to live in the house AS A CONVICTED SEX OFFENDER, and thus must sell the house (or more accurately NOT live in the house, he can still own it).
The Georgia case involves the taking of the property rights that the present owner purchased (i.e. NOT in the Deed). No one paid the present owner for this right, and he had it when he purchased the property, unlike a Deed Restriction where the present owner NEVER had the right set forth in the Deed Restriction. The courts have been quicker to strike down Zoning law restrictions then Parole restrictions, and almost never strikes down Deed Restrictions. Thus I see this law being upheld by almost any court.
|