The United States Supreme Court has ruled on housing discrimination cases since the early 1940’s. Such key cases include Shelley v. Kraemer, 334 U.S. 1 (1948) and Jones v. Mayer Co., 392 U.S. 409 (1968). In Shelley, the Court held that “racially restrictive covenants” in property deeds were unenforceable. In this case, the “covenants” were terms or obligations in property deeds that limited sales or transfers to anyone other than Caucasians. The Court ruled that although racially restrictive real estate covenants were not per se illegal, they still could not enforce them under the Fourteenth Amendment making such covenants unenforceable.
In Jones, the Court ruled federal law barred any racial discrimination whether public or private, in the sale or rental of property. In this case, the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968, allowed the federal government to ban private parties from engaging in discriminatory housing polices. A private party could not refuse to sell, or transfer property based upon race.
This past legislative cycle, the Florida Legislature codifies the thrust of these rulings by enacting, Section 712.065, Florida Statutes, which expressly renders any discriminatory restrictions in a deed unlawful and unenforceable, and therefore null and void. Section 712.065(3) further addresses discriminatory restrictions that may be found in community association covenants and authorizes their removal by a majority vote of the board of directors. The law specifically allows for an amendment of the covenants without the normally required membership vote.
Prior to the passing of this law, communities could not remove these unlawful and offensive restrictions without membership approval, which can sometimes require as much as 75% of the membership to affirmatively vote for the change. Even when members may agree with the change, obtaining the votes can at times be difficult simply due to member apathy in returning the required forms. Now community association boards of directors can act to remove the offending provisions unilaterally. Board members should review their documents with legal counsel to determine whether they contain discriminatory covenants that should be removed with a board vote.