December 18, 2021
Garden State Real Estate Academy recently held a class for people wanting to get a New Jersey real estate license and the subject arose about questions they should never answer:
“Are there any convicted sex offenders in this area where I’m thinking of buying a home?”
“How good are the schools here?”
“Is this neighborhood safe?”
These may seem like perfectly normal questions and ones that any good real estate agent who knows the area should be able to answer. But they are fraught with legal liability for that agent.
“Are there any sex offenders in the neighborhood?”
Megan Kanka was a seven year-old New Jersey girl who in 1994 was raped and murdered by a neighbor who had been released from prison after a previous child sexual attack and who moved across the street from Megan. Her family was not advised of his presence or previous record. Her family maintained that they should have been notified of sex offenders like him. As a result, the Federal Government and all 50 states passed Megan’s Law, which requires sex offenders to register their address with local police when they are released from prison. Those records are accessible to the public on the internet.
Real estate agents have a fiduciary duty to provide material information that protects their clients’ interests. It would seem natural, therefore, for a buyer with young children to ask their agent, “Before we put in an offer for this home, are there any convicted sex offenders in the neighborhood?” Who among us would not want to answer that question honestly if we knew of such an offender living nearby?
But each state treats sex offenders’ right to privacy differently. In some states, the agent is obligated to disclose the presence of known sex offenders, in other states the agent has the right to do so if they wish. In New Jersey, the law is very clear. Not only should agents not disclose that information, we may not, under any circumstances do so. Even if we have direct knowledge of a sex offender living across the street from the home our client is about to buy, we would be committing a criminal offense by disclosing that.
Real estate agents in New Jersey can only refer a client who inquires about the presence of persons on the sex offenders list to law enforcement authorities, such as the county prosecutor’s office or to the Sex Offender Registry on the New Jersey State Police website at www.NJSP.org.
“Is this a safe neighborhood?”
What a perfectly normal question for a buyer or tenant—especially an out-of-town client not familiar with the area—to ask their real estate agent.
It can also be a liability minefield for a REALTOR® to answer. First, what does “safe” mean? It is a subjective measure. A person currently living in one part of a big city might feel perfectly safe moving to another neighborhood in the same city, whereas a person moving there from rural North Dakota might be shocked and terrified at the neighborhood’s crime statistics. “Safe” is subjective.
A real estate agent should not get into the business of rendering their opinions on subjective matters such as “safety.” Providing answers to the question can lead to charges of such discriminatory practices as steering and blockbusting because certain minority groups have historically been disproportionally arrested and incarcerated. Investigative journalists at Long Island Newsday in 2019 visited real estate agents posing as buyers. In one case, the agent told a black “buyer” what a great neighborhood he was thinking of moving to, and how she had sold many previous homes to happy buyers in that town. A few days later, when a white journalist posing as a buyer inquired about the very same home for sale, she warned him repeatedly about the crime rate and gang activity there.
If a client asks you about the crime rate, the only acceptable response is to say that your company does not keep those records and that if they are important to the buyer, they should check with a source that has accurate statistics, such as the township census data, police department website, or county prosecutor’s office data.
“How are the schools?”
You have an out-of-town buyer whom you are driving around, and they ask the most natural question: “Which town has the best schools?”
Many brokers will instruct their agents to completely avoid answering any questions on where the best schools are, telling them to refer clients to independent school review sites instead. In fact, it is not what you should tell your buyers, but to whom you provide it.
If you say to white buyers, “The schools in Eastville are much better than those in Westville” and do not say the same thing to minority buyers, you could be violating both state and federal fair housing laws. That could be construed as steering. But if you made a statement to every buyer, regardless of their protected class, such as “The average teacher-student ratio and test scores in Eastville are X whereas in Westville they are Y” you would be safe, so long as you were using factual data and not just your opinion.
Want to get your real estate license?
Garden State Real Estate Academy offers live pre-licensing, broker licensing and Continuing Education classes for aspiring and existing New Jersey real estate agents. We also provide the “Supplemental Course” for out-of-state licensees wishing to earn their NJ license and our popular “Across the River” class to prepare NJ agents to pass the Pennsylvania real estate licensing exam. These are all delivered by live instructors via Zoom.
We also offer online self-study real estate licensing classes in 21 states through our partnership with The CE Shop. New Jersey does NOT allow self-study pre-licensing classes.
For information on the real estate school’s upcoming New Jersey licensing classes, click here: https://www.gsreacademy.com/pre-licensing-courses/
For real estate licensing classes in all other states, click here: https://gsreacademy.theceshop.com/pre-licensing
David C. Forward is a licensed real estate broker and instructor and was first licensed as a Realtor® 33 years ago. During his career, David and his business partner sold more than 500 homes in South Jersey. He is now School Director of Garden Real Estate Academy, has won numerous awards for real estate sales, is a much-requested public speaker who has addressed audiences on six continents and is the author of 19 books.