Do Your Clients’ Deed Covenants Contain Racist Language?
The Fair Housing Act may prohibit racial discrimination, but a surprising number of community associations’ deed covenants still contain racial restrictions — and some of your clients could be among them. With civil rights a mainstay in the media since the death of George Floyd in May 2020, associations with such restrictions should take action now, before they suffer potential legal and practical consequences.
“There are a bunch of restrictions out there,” says Marc Markel, a shareholder in the Texas-based law firm Roberts Markel Weinberg Butler Hailey PC. “They really are from the Dark Ages.”
Consider, for example, this 1947 deed restriction that was found in the governing documents of a Bloomfield Township, Mich., HOA:
“That no lot, or any part thereof, shall be sold, conveyed, rented, leased or loaned by either party hereto to any person not of the pure, unmixed, white, Caucasian Gentile Race, nor shall any person not of the pure, unmixed white, Caucasian Gentile Race be permitted to occupy or use any lot or buildings erected thereon, except that an owner or tenant of the premises may employ servants thereon who are not of the pure, unmixed white, Caucasian Gentile Race.”
A Detroit news station reported on the restriction in 2016, bringing the HOA some very unwanted publicity.
You might assume that the association wasn’t aware of the restriction, but, according to the news report, you’d be wrong. In fact, the association already had updated its bylaws to refer to the restriction as “immoral and illegal.”
Markel finds such action inadequate. “What does that do but repeat that paragraph so it brings attention to something that’s been dormant for a number of years? The idea isn’t to say that it’s void but to have it not even appear.”
Learn why failing to remove the restriction is a risky strategy, particularly for associations that post their governing documents on the Internet, and what to do instead: