Community Associations, HOAs should seek to remove offensive covenants

Rodgers Forge, Towson, MD, seeks to eliminate racist covenants. But why can’t owners and residents in HOAs challenge any restrictive covenant or law that violates the rights of Americans?
US Constitution (pixabay.com)

Every year I read reports of homeowners shocked and dismayed to learn that deed restrictions on their vintage or historic home contain blatantly racist rules against selling one’s home to any non-white person.

Although the courts deemed such restrictions unenforceable in 1948, housing discrimination was not specifically outlawed until 1968, with passage of the Federal Fair Housing Act.

Nevertheless, few people bothered to rewrite old deeds and covenants. As a result, discriminatory restrictions serve as uncomfortable reminders of U.S. history, when federal and local housing policies supported and promoted segregation and prejudice against non-white, non-Protestant citizens and immigrants.

The Baltimore Sun reports that a group of neighbors in Rodgers Forge, Towson, intend to have racial covenants removed from their neighborhood’s CC&Rs.

According to the official website for Rodgers Forge Neighborhood:

Rodgers Forge is a close-knit community in Baltimore County, just north of the Baltimore City line. The Forge, as it is affectionately called, is part of the greater Towson area, and consists of nearly 1,800 households.

The Forge is not part of a formal HOA, but there are covenants that run with deeds that require homeowners to have exterior changes to their homes approved by the Rodgers Forge Community Association.

There is strong community spirit and pride in Rodgers Forge, and many ways for residents to participate in neighborhood life — from volunteering on neighborhood committees to the Annual Summer Picnic, plus other family-oriented events like Outdoor Movie Nights, the Easter Egg Hunt, and Santa Claus visits.

 

In other words, the Community Association in Rodgers Forge is a voluntary Civic Association, with annual dues that start at $30. The association does have limited powers to enforce certain aesthetic covenants with regard to exterior improvements.

Once again, mainstream media and the industry fail to make these distinctions in news releases. A Civic Community Association such as Rodgers Forge is not the same thing as a mandatory, corporate, non-profit association as promoted by industry trade group Community Associations Institute(CAI).

Both types of HOAs or community associations have CC&Rs that “run with the land” and that can be enforced by neighbors, usually through the governing body of the association. Many HOAs prior to 1968, and even into the early 1970s, were voluntary participation civic or neighborhood associations like Rodgers Forge and another similar association in Forest Hill, Cleveland, also featured here on IAC

Pre-Civil Rights era associations were likely to contain racist covenants, as explained in the following article.

Residents of Towson neighborhood confront racist legacy of covenants

Alison Knezevich Alison Knezevich
The Baltimore Sun
Hiteshi Auburn liked the tree-lined streets and sturdy brick homes of Rodgers Forge. She loved how the children played outside and walked to school.

But most of all, it was the sense of community that attracted her family to the Towson neighborhood — where, she says, you can’t live long without getting to know your neighbors. So Auburn was disturbed to discover a piece of Rodgers Forge history that remains in its legal records.

“No person of any race other than the white race shall use or occupy any building on any lot,” states a local housing covenant, a document that is attached to the deeds of some homes in Rodgers Forge.

The form, from the late 1940s, provides an exception: “This covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant.”

Read more (video):

http://www.baltimoresun.com/news/maryland/baltimore-county/bs-md-co-rodgers-forge-covenants-20170907-story.html

 

Mandatory association-governed common interest communities became the norm after establishment of CAI, an organization created shortly after the Fair Housing Act was enacted in 1968.

In the 1970s, the real estate industry began to build and market suburban neighborhoods with exclusive access amenities, promoting an escape from crime in the city, and touting superior school districts.

The industry quickly discovered that, if associations allowed for voluntary participation, many homeowners would not pay dues, creating a “free-rider” situation where only a portion of homeowners paid for maintaining private pools, lakes, parks, and more, even though all residents were able to use and enjoy those amenities. Thus, homeowners’ associations with mandatory assessments were born.

The effect was twofold. First, homeownership in these new communities was effectively limited to those who could afford to pay for their exclusive lifestyle, essentially perpetuating housing segregation without openly violating the Fair Housing Act.

Second, the industry created police powers for its member associations, by creating the right to place a lien, and, by way of legislation, the right to foreclose on liens for non-payment of HOA assessments. In the 1980s and 1990s, as construction of common interest communities became the new norm, hundreds of thousands of mandatory residential associations were created to govern them. During this period of time, the industry, led by CAI, incrementally increased the power of HOAs to collect assessments and to enforce restrictions.

CC&Rs and ByLaws, created by attorneys for developers, became more and more complex, often with detailed and onerous restrictions not only on use of personal property, but also sometimes arbitrary rules regulating “neighborly” behavior.

In the 1970s, typical CC&Rs rarely exceeded 10-20 pages. Today’s governing documents often exceed 100 pages of complex legalese, with multiple addenda and amendments. Developers, too, have increased their rights exponentially in the past several decades, often adding covenant provisions that shield the developer from liability for construction defects, or waive the developer’s obligation to contribute to reserve funds for the association.

And, of course, as documented here on this website, CAI and homebuilder lobbies have managed to enact hundreds of new and amended laws to enable their members to increase their profit potential. Most legislation affecting mandatory HOAs, condo, and cooperative associations since the 1980s has created too much power and too little accountability for HOAs.

Although various state level advocacy groups have made valiant attempts to increase protection for housing consumers, there has been limited progress made by trying to hold developers, management companies, HOA attorneys, and abusive HOA boards accountable.

Every time the advocacy “adds to” current legislation, the industry flexes its collective political muscle to neutralize any regulatory effects.

Which leads us back to today’s feature article.

Perhaps advocates need to focus on “subtracting from” or getting rid of offensive enabling legislation and restrictive covenants. Good candidates for the axe would be any provision that limits fundamental property rights of homeowners and civil liberties of its residents.

Just as Rodgers Forge residents seek to eliminate racial deed restrictions and community covenants, homeowner and civil rights advocates and activists must seek to eliminate both legal and CC&R provisions that invite – even legitimize – abusive and discriminatory behavior.

Among the most offensive powers that must be eliminated or severely limited:

  • the power to impose fines or monetary penalties in the absence of due process by court order,
  • the power to attach liens to private property or foreclose on liens, also in the absence of due process,
  • the power of HOA boards to enact rules, without a vote of membership, and in the absence of Constitutional constraints,
  • the power of developers to create governing documents, including restrictive covenants attached to the land by way of property deeds, without any Constitutional review by federal or state government,
  • the power of local governments to enable creation of mandatory association governed communities, in the absence of Constitutional standards, without a public hearing or state charter,
  • the power of state governments to confer governing powers upon non-governmental, private organizations, commonly known as HOAs.

All of the above powers and authorities of association-governed communities are every bit as offensive as racial, ethnic, or religious covenant restrictions. Even today, restrictive covenants and enabling provisions of contract law tend to limit the rights and freedoms of housing consumers, property owners, and residents of thousands of U.S. neighborhoods and communities.

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