HOAs are unique housing communities that provide neighbors with a sense of belonging, in part by consenting to a set of common rules. These rules are codified in the HOA’s governing documents as covenants, conditions, and restrictions, also known as “CC&Rs.” These rules are the basic conditions for living in a planned community, development, condominium complex, or industrial park. The CC&Rs also allow HOAs to impose fines or other penalties on homeowners that do not abide by the guidelines.
While HOAs are still being built today, many planned communities formed in the early 1960s, a tumultuous time in our nation’s history. As a result of increasing racial tensions, many HOAs drafted language in their CC&Rs to restrict Black Americans from buying homes in their communities. Not only did these restrictions perpetuate racial segregation, but they prevented Black Americans from building wealth and creating familial stability through homeownership. In 1968, President Lyndon B. Johnson signed the Fair Housing Act (FHA), making racial discrimination in housing practices illegal.
While racial attitudes have changed since the 1960s, many racially charged CC&Rs, though unenforced, remain part of communities’ governing documents. Some states have taken action to correct residual injustice. Effective October 1, 2018, Maryland created “a streamlined process for removing illegal racial restrictions from deeds for common areas of HOA-governed communities.” The law actually required HOAs to remove racist language from their CC&Rs within one year. Interestingly, the law gave HOA boards a way to bypass bureaucratic red tape; the HOA board was legally permitted to bypass a membership vote to make the amendment. According to a report from the nonprofit Independent American Communities, “Rodgers Forge, a deed-restricted neighborhood in Towson, Maryland is reportedly the first homeowners association-governed community to delete covenants restricting residency based upon race, religious belief, or national origin.”
Unfortunately, not all HOAs across the country are responding in the same way as Rodgers Forge. After a request to remove racist language from their CC&Rs by the Attorney General of Missouri, two HOAs in Kansas City refused to respond. In fact, it took a lawsuit filed by the Attorney General for these HOAs to take any action at all. Of course, CC&Rs are legally subject to federal and state statutes, regulations, and common law.
A Lasting Impact
The policies implemented in the 1960s are still affecting HOAs today. Business Insider recently published an article highlighting this problem. “While the federal Fair Housing Act was passed in 1968, prohibiting racial discrimination in the sale and rental of homes, HOAs still find ways to exclude or discriminate against Black homeowners. A recent report found that neighborhoods with HOAs are less racially diverse, and less-regulated cities have higher HOA premiums, leading researchers to believe that residents rely on HOAs to facilitate segregation.”
CC&Rs are typically long, dense documents that are rarely reviewed cover to cover. If your HOA was created before the passage of the FHA in 1968 and hasn't reviewed your governing documents lately, it is possible that your documents still include illegal language. Leaving this type of sentiment among your community members may lead some homeowners to take action. For example, a Black resident in South Carolina filed a $1 million dollar lawsuit for “in damages for racial discrimination, harassment, emotional distress and undue burden on his family” after a nasty battle with his HOA board over the removal of a shed from the homeowner’s backyard.
Best Practices in CC&R Revisions
So why should you change your HOA documents to reflect current discrimination laws? Here are a few compelling reasons:
- To delete illegal, conflicting, and unnecessary stipulations.
- To delete developer privileges no longer being used.
- To improve clarity
- To make appropriate provisions to reflect current homeowners
- To make changes in line with new technology (e.g. remote board meetings)
- To make documents easier to understand, read, find important items
- To correct mistakes.
Here are a few additional tips as you consider altering your CC&Rs:
- Although HOA boards are not typically required to make amendments, it’s beneficial to make amendments to the CC&Rs (and bylaws) on a reoccurring basis—typically every five years.
- Unless the documents are archaic, there should be no need to completely rewrite them. Simple amendments should be able to address the concerns.
- It is critical to seek appropriate advice from your legal team before making any changes. A legal team can review and make changes to the document in a matter of weeks or months.
- Although the cost of hiring a licensed legal professional to make changes can be costly, it is important to remember that changes made by the board alone could lead to more significant legal trouble down the road. It is always best to err on the side of caution and have a legal professional review and endorse any changes.
- Board members should still be part of the process, particularly as part of the final approval before the amendments are passed.