There was an incredibly interesting story on National Public Radio last week.  Our nation’s turbulent history of racial segregation and is not as far back in our past as we all want to believe.  This is certainly true of racial and ethnic discrimination in housing transactions.  The story not only reminds us of the failings of our past, but spins into a modern day fair housing dispute.  While few of our clients deal with direct discrimination such as  deed restrictions that prohibit ownership or occupancy based on race, fair housing concerns are chief among the discussions we try to have with our Association clients.  For this reason, I thought this story particularly instructive for both its historical remembrances and lessons for today.

In this particular situation, an historic community called Myers Park, located in Charlotte, North Carolina has one of those fair housing situations on its hands.  The controversy has to do with the original deed restrictions placed on these properties back in the early part of the last century.  In addition to the park-like look and feel the original restrictions hoped to protect, these early restrictions also included a prohibition on the sale to or occupancy by people of certain races.    The original deed language, now nearly 100 years old, requires that Myers Park properties “be used for residential purposes only and shall be owned and occupied by people of the Caucasian race.“  Given the social and political situation in pre-civil rights era America, we shouldn’t be surprised about these kinds of restrictions.  But what may be surprising to some of us is that these deed restrictions continue to exist in their original form, even though civil rights laws and the courts have long ago deemed such restrictions unenforceable.

The story does well to discuss the argument to remove such void and obviously socially abhorrent language from  restrictions.  There are smarter folks than I that are studying and researching these kinds of property restrictions.  For the sake of the legacy we will leave to our children and grandchildren, we all need to be aware of the horrible injustices visited upon Americans of different races and ethnic backgrounds.  This was not a pleasant part of our history, but the NPR story and the related research by a Seattle Washington historian are important public discourse.

As if the issue of the discriminatory restrictions were not challenging enough, one phrase in the story stuck out at me as a warning for all HOA and Condo boards.  Obviously this beautiful community cares about how owners maintain these beautiful homes, but the story about a nice community with a challenging history is now a current legal controversy.  For decades, owners and others were aware of the unenforceable deed restrictions, but the void language “wasn’t even an issue until the homeowners association posted a sample deed on its Web site that included the racial wording.”

Boards, Managers, Homeowners, Landlords, Realtors, Title Officers and anyone dealing with Real Property – Fair housing issues are not the stuff of yesteryear.  These claims and issues are real.  The law cares little of your intent.  Here, I have no doubt this board only hoped to have all the neighbors better understand the valid and enforceable recorded restrictions.  The Board’s intent here was to continue to keep the community look-and-feel at the required standards.  The Board wanted to keep values high and the Association members well-informed.

But, fair housing disputes are rarely about intentional discrimination.  Government agencies that enforce the laws and the plaintiff’s attorneys assisting effected homeowners need only to argue the impact of the board’s actions.  Very few clients that talk to us about fair housing claims likely have such an intent, and those that do can easily hide it.  Long is the meeting and difficult the solutions when a well-intentioned board has acted in a way to impact and implicate a fair housing issue.  These cases open the Board to much liability and can cost much in time, attorneys’ fees and in some cases sanctions for board members, community managers and association employees.

And the legal battle at Myers Park rages on. We will watch and we will continue to advise and warn our clients about the trials and travails of fair housing complaints. The lesson is that a simple web-page post can turn into a fair housing problem and unwanted national media attention.

In the end, perhaps Dr. King said it best -

Many of the ugly pages of American history have been obscured and forgotten….America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness –justice.     – Dr. Martin Luther King, Jr., 1967

Jason Smith, one of the Carpenter Hazlewood attorneys and fair housing issue guru, assisted in preparing and editing this entry. Thanks, Jason.

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