Are there skeletons in your Association’s closet?
Last week I was preparing an amendment to a set of recorded governing documents for a local community that were over 50 years old. There had been several amendments over those decades and I was asked to provide a few more updates by the recently elected new board. When I reached the section where I wanted to place my new language I scrolled through and blinked twice when I read this section:
“No colored persons or servants shall be permitted to reside in the units overnight”.
I flipped back and forth through the brittle pages to confirm that this language was surely removed decades ago. After several minutes trying in vain, I realized what I was looking for didn’t exist. In 2019, the vile sentence above was still part of this community’s governing documents-recorded in the Public Records for all to see. What I was looking at was the expression of bigotry that we, as a society, should have abolished long ago.
I hastily called my client to discuss my discovery. The board was shocked and upset to learn that this language was not only part of their history but still in their documents today. When I questioned how prior boards or prior counsel had never addressed this language, they sheepishly replied that they had never thoroughly reviewed their documents or asked counsel to thoroughly review their documents given their concerns about the costs. And, while several of the directors claimed to have read the governing documents, they admitted that they had not seen that clause buried in a 90+ page set of documents.
Naturally, we talked about the legal liability involved with having discriminatory language in the public records even if the association was unaware of its existence and had absolutely no intention of enforcing same. But, even more hearteningly, we spent as much or more time discussing the moral and social implications of the restriction. Restricting who you wanted living in your midst based upon race was a widespread form of racism in the 1950’s when these documents were created. Would we ever expect a developer or counsel to draft this kind of restriction today? Most definitely not given the potential for a lawsuit, as race is a protected class. However, what if we were asked to draft language which included a subtle form of racial profiling? How about language which required verification of an applicant’s immigration status prior to approving a sale or lease? How about relying upon a history of arrests or convictions for certain types of crimes as a basis for denial of an application? Restrictions do not need to be as blunt as the type used decades ago to have the same discriminatory impact.
After the call with my client, I proceeded to remove the language in my draft amendment. A number of thoughts ran through my head. Would it be possible that the amendment removing this racial restriction would not garner 100% approval of all members who voted? While we didn’t need that high of a threshold to pass the amendment what would it say if some of the members voted against removing this hateful language? Is this kind of thinking still present in today’s society? What can we do to prevent that kind of thinking in today’s communities? All questions to ponder as community association representation continues to reveal truths from our past and challenges for our future.