Fair Housing Act and Older Governing Documents.
The Fair Housing Act (“FHA”) makes it illegal for housing providers to discriminate on the basis of certain protected classes including race, color, sex (which includes gender, sexual harassment, gender identity and sexual orientation), national origin, religion, familial status, and disability. Discrimination can take many forms, including publishing any discriminatory terms of purchase or use. Examples of “publication” include rules that prohibit children from using certain portions of association property or the inclusion of historical discriminatory terms in the governing documents that were enacted and recorded prior to the FHA.
The discriminatory term we see most often in older covenants is discrimination against people under 18 residing in a community. This is familial status discrimination, which includes discrimination based upon children under 18 years old living with their parents, pregnant women, and people attempting to adopt children under 18 (foster parents). If a covenant against children living in the community is still in the public record, then an association can potentially be held liable for a violation of the FHA.
An exception to discrimination based upon familial status is in 55+ communities. But even there, rules restricting use of amenities, etc., must be age neutral. For example, instead of a pool rule requiring all babies to wear diapers, the rule should prohibit all persons who are not in control of their bowels to use an approved swim diaper.
Other grounds for discrimination are seen less often in governing documents. Race has been a protected class since 1968, so discrimination based upon race in condominium and HOA governing documents, which by and large developed after 1968, is rarely seen.
What should an Association do to avoid FHA liability, especially when amending governing documents is often difficult, costly, and uncertain to achieve the requisite vote? Recognizing this difficulty, in 2021, the Florida Legislature adopted FS 718.112(1)(c) for condominiums, and FS 720.3075(6) for HOAs, which both provide that: “The association may extinguish a discriminatory restriction as provided under s. 712.065.”
FS 712.065(3), in turn, allows a majority of the board of directors to eliminate a discriminatory restriction within a covenant or restriction without unit owner vote and regardless of the vote required for an amendment. Thus, a unit owner vote is not required to simply eliminate the discriminatory restriction from the governing documents.
That said, it still is desirable to regulate use of common property, so, depending on the covenant, an amendment may be more desirable than eliminating the covenant all together. If use restrictions are contained in rules and regulations, then the rules and regulations can be rewritten or revised to avoid discriminatory language, but still achieve the effect of controlling undesired behavior (see pool use example above). In most communities, rules and regulations can be approved by board vote alone as well.
Pursuant to FS 712.065(2), discriminatory restrictions in covenants ARE NOT enforceable. So even if an association does not eliminate the discriminatory restriction, it cannot legally act on that restriction and no court or arbitrator will uphold the association’s right to enforce that restriction.
FHA litigation is costly and time consuming. Any steps an association can take to eliminate potential FHA liability proactively, such as extinguishing discriminatory covenants, may save the association potential liability exposure in the long run.
If your association’s governing documents were recorded prior to 1988, they may potentially contain discriminatory restrictions. Seek legal counsel to review the association’s governing documents to determine if any amendments or eliminations may be necessary to avoid FHA liability exposure.