Do I Have to Disclose My Expunged Convictions to the New Jersey Real Estate Commission?

All licensed real estate brokers, agents, and other real estate professionals are required to undergo a criminal background check as part of the licensure process. As part of that process, you will be asked the following questions:

“1. With the exception of a motor vehicle violations, have you ever been convicted of a crime, misdemeanor, or disorderly persons offense in the State of New Jersey, any other state, or by the federal government, or are you presently on probation or parole?”

“2. Is there a criminal complaint, disorderly persons charge, a criminal accusation or criminal information presently pending against you or are you presently under indictment in New Jersey, any other state or by the federal government, or are you presently enrolled in New Jersey’s Pre-Trial Intervention (PTI) program or any other similar State or Federal program involving the deferral of the disposition or sentencing in a criminal matter?”

In determining if your record should be disclosed to the New Jersey Real Estate Commission, the following issues should be addressed:

WAS YOUR RECORD ACTUALLY EXPUNGED?

The first question you should ask yourself in determining whether or not you should disclose your criminal history is whether or not it was in fact expunged. Do not guess here. You need to be absolutely certain that you record was successfully expunged. If you fail to disclose your criminal record to the Commission because you are under the mistaken impression that it was expunged, you will be subject to denial of your license, fines, and other possible disciplinary actions. Ignorance is not an excuse in this case.

Often times, people assume that their criminal records are automatically expunged or just go away after a certain amount of time has passed. This is simply not true. In order to obtain a legally effective expungement, you must file a Petition for Expungement and have it granted by a Superior Court in the State of New Jersey. Records do not just expunge themselves, no matter what anyone, including a prior attorney, may have told you.

At the end of the expungement process, you should have been given an Order of Expungement, signed by the judge who granted the expungement, as well as a letter from the New Jersey State Police confirming that your records were deleted from the appropriate databases  in accordance with the Order. If you do not possess this supporting documentation, do not assume that your record has been expunged.

If you are unsure whether your criminal record has been successfully expunged, you can find out by asking the attorney that originally represented you on the matter. Alternatively, you can perform and FBI criminal background check on yourself.

If you conclude that your record has not been expunged, you must answer questions 1 and 2 as applicable. Failure to do so will result in denial of your license, fines, and other possible disciplinary action.

If you conclude that your record has been expunged, the question becomes a bit more complicated. This issue is perhaps better phrased as “must you disclose?” versus “should you disclose?”

Technically speaking, you are under no obligation to disclose the expunged record. Once a record is expunged in New Jersey, “the offense is deemed not to have occurred, and the petitioner may answer any questions related to their occurrence accordingly.” See N.J.S.A. 2C:52-27. The three exceptions under which expunged records must nonetheless be disclosed are as follows:

• If the petitioner subsequently applies for another expungement,

• If the petitioner subsequently applies for acceptance into a diversionary program in the New Jersey Courts, or

• If the individual is seeking employment in the judicial branch or with a law enforcement or corrections agency

Thus, according to the statute, applications for professional licensure (except attorneys) need not recite court proceedings that have been expunged. Thus, realtors are under no legal obligation to disclose the expunged record to the Commission.

However, as stated directly on the their application website, the New Jersey Real Estate Commission advises applicants of the following:

“IT IS BETTER TO ERR ON THE SIDE OF DISCLOSURE THAN TO ANSWER IN A WAY THAT MAY RAISE CONCERNS ABOUT WHETHER YOUR ANSWERS WERE HONEST AND TRUTHFUL.”

Thus, in some cases, it may be best to disclose the information about the expunged event, with an explanation of the event, the surrounding circumstances, and proof of expungement. It is best to consult with an expungement lawyer regarding your specific case.