Governing documents vs federal law
No vote, no amendment, and no clause in your declaration can override federal law.
Federal law always outranks your declaration, bylaws, and rules. If a governing-document provision conflicts with federal law, most commonly the Fair Housing Act, the federal rule wins regardless of when the document was written, how many owners approved it, or whether anyone has formally amended it out.
Federal law sits at the top of the hierarchy
Every declaration, set of bylaws, and rule your association adopts sits inside a ranked stack. Federal law sits above all of it, state law comes next, and the association's own documents rank below that, with the declaration outranking the bylaws, and the bylaws outranking rules and resolutions.
"At the top of the hierarchy are federal laws governing all citizens and business entities."
Source: Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
A conflict is resolved by rank, not by recency or by which document a board likes better. A newly adopted rule still loses to a federal statute it conflicts with.
Old discriminatory language is void, not just outdated
Many declarations recorded decades ago contained covenant language barring sale or occupancy based on race. In 1948, the U.S. Supreme Court held in Shelley v. Kraemer that a court enforcing a racially restrictive covenant is itself unconstitutional state action, which makes those covenants unenforceable no matter what the paper still says.
Federal fair housing regulators independently treat that kind of restriction as illegal and unenforceable today, whether or not anyone has taken the extra step of striking the language from the recorded document. Whether your state has its own statute and county procedure for formally removing that language from the public record varies by state; check with your county recorder.
Your amendment process can't save a restriction federal law bars
Boards sometimes assume a problem provision stays valid until the membership votes to amend it out, the way most declaration changes work. That is not true when the conflict is with federal law. A restriction that the Fair Housing Act prohibits has no legal effect the moment it conflicts, regardless of what vote threshold your declaration would otherwise require to remove it.
That means a board does not need to wait for an amendment vote to stop treating void language as binding. The internal amendment process still matters for cleaning up the recorded document, but it is not what makes the restriction unenforceable.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
Your declaration still contains a clause from 1955 barring sale to buyers of a certain race. A new owner wants it enforced against a resale. What happens?
A homeowner points out that a rule the board adopted last year conflicts with the Fair Housing Act. Which one controls?
Your declaration requires a two thirds owner vote to remove any restriction. One restriction violates the Fair Housing Act. What must happen before it stops applying?
Sources
- Understanding the Hierarchy of Governing Documents in a Community Association, Community Association Management (CAMS)
- Shelley v. Kraemer, 334 U.S. 1 (1948), Supreme Court of the United States
- Fair Housing Act overview, U.S. Department of Housing and Urban Development
Related elsewhere in the Academy
Governing Documents
See how this rule fits into the full hierarchy of documents in the next lesson.
Whether your state has a statute and county procedure for formally striking void covenant language from your recorded declaration, and what that process requires, varies by state.