By Deborah Goonan, Independent American Communities
In yet another classic example of HOA regulatory window dressing, Legislators in the House have watered down an HOA Equal Protection bill.
HB 623 was originally drafted with language to affirm Constitutional constraints on governing boards of condominium, cooperative, and planned communities.
January 2020 version of HB 623: Equal Protection
As explained in February IAC post, Florida Legislators are considering HB 623, a bill that seeks equal protection of Constitutional rights for all residents of HOA-governed communities.
In case you missed it, the following screenshot, captures the January 24, 2020 version of HB 623.
You can see the relevant Equal Protection clauses for Condominium Associations. Identical language was repeated for both Homeowners’ Associations (planned communities) and Cooperative Associations.
(Click image to enlarge.)
Note that the language pertains to “any right protected under the Fourteenth Amendment to the United States Constitution” and makes any provision of an HOA’s declaration (CC&Rs), bylaws, or rules and regulations that diminish those rights unenforceable.
For your reference, Section 1 of the 14th Amendment reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In short, the 14th Amendment states that all provisions and protections of the U.S. Constitution apply to all U.S. citizens. No state is permitted to enact or enforce any laws that limit or take away Constitutional rights.
Put another way, the entire Bill of Rights, and all subsequent amendments to the U.S. Constitution, must apply in each state.
So why don’t Constitutional rights apply to HOAs?
Constitutional protections include First Amendment rights such as freedom of speech, right to peaceably assembly, and freedom of religion. Additional important protections include the right of an individual to own a firearm for personal protection, and the right to just compensation for any state-approved forceable taking of private property.
As extensively covered here on IAC, HOA governing boards routinely violate Constitutional rights. The HOA industry justifies its right to ignore Constitutional constraints by hiding behind the corporate veil and over-emphasizing the importance of contract law.
If we connect the dots, the January 2020 version of HB 623 extended Constitutional equal protections to all residents of HOA-governed communities.
Obviously, if passed as drafted in January, HB 623 would override the HOA-industry trade-group stance that, because HOAs are private organizations, Constitutional constraints on their power need not apply.
February 2020 amendments to HB 623: Partial Protection
As expected, influential attorneys from the HOA-industry oppose broad equal protection of rights for residents of HOA-governed common interest communities. The last thing the HOA-industry stakeholders want is for residents and homeowners to challenge an HOA board’s overly-broad power to control their private property, their speech, and their personal behavior.
To that end, on February 26, several amendments were approved in the Florida House.
First, HB 623 added a definition for discriminatory restrictions:
As used in this section, the term “discriminatory restriction” means a provision in a title transaction recorded in the state which restricts the ownership, occupancy, or use of any real property in this state by any natural person on the basis of a characteristic that has been held, or is held after July 1, 2020, by the United States Supreme Court or the Florida Supreme Court to be protected against discrimination under the Fourteenth Amendment to the United States Constitution or under s. 2, Art. I of the State Constitution, including race, color, national origin, religion, gender, or physical disability.
In simple terms, a discriminatory restriction is one aimed at preventing property ownership or residency based upon a person’s race, gender, religious or ethnic background, disability, or marital or familial status.
In addition, the previous language of HB 623 has been completely removed and amended to offer only partial protection of rights for owners and occupants of HOA-governed communities.
(Click image to enlarge.)
Restating existing law
Translation: restrictions that discriminate against protected classes of people cannot be enforced by any housing provider, and, under HB 623, that includes HOA governing bodies.
But U.S. Civil Rights Acts, specifically the Fair Housing Acts, already make housing discrimination illegal, regardless of the existence of an HOA governing body.
In essence, the amended version of HB 623 simply restates existing U.S. and Florida law.
So what’s the point?
The only real purpose served here is to take the HOA off the hook for its failure to officially remove the unenforceable offensive restrictive covenants that apply to the community.
In other words, if any homeowner asks their HOA board to remove offensive restrictions from the governing documents, the board can do so with a simple majority vote at a meeting. There’s no need to require a super majority vote of approval by all property owners in the association.
Obviously, no one in the state Legislature is going to oppose these recent amendments to HB 623. To do so would be political suicide.
But, in reality, what does the current amendment accomplish?
Only symbolic protection of rights
Unfortunately, the overall effect of limiting Constitutional protections to the Fair Housing Acts leaves residents of Florida HOAs back at Square One.
HB 623, as previously drafted, offered true Equal Protection of rights for all residents in HOA-governed communities. The current version of HB 623 is symbolic in its scope.
Truthfully, it offers very little additional protection of rights for millions of Floridians.
And that’s very disappointing news.
However, the recent watering down of HB 623 in the Florida Legislature is just another example of HOA-industry lobbyists (attorneys) using their political influence to maintain the power imbalance between residents and HOA leaders.
It’s no coincidence that trade group Community Associations Institute (CAI) just amended its official Policy Manual in February 2020 with language that mirrors the amendments in Florida HB 623.
Call to action
Floridians who desire a state law that upholds their Constitutional rights — all of them, not just a few of them — are urged to contact their state House and Senate representatives.
The Legislature must reinstate full Equal Protection under the U.S. and Florida Constitutions. ♦
Read and track Florida House Bill 623
Read the current version of HB 623
FLORIDA LEGISLATURE CONSIDERS HOA ‘EQUAL PROTECTION’ BILL (IAC post, Feb. 7, 2020)