Facing Up to Discriminatory Deed Language: What Pennsylvania Did

With everything that’s happening in the world, maybe more needs to be said about what the Pennsylvania Senate did in December. Every senator agreed to pass state Rep. Justin Fleming’s H.B. 1289, enabling homeowners to publicly condemn offensive language in deed covenants. The new law 1289 makes it cheap or free, and very simple to do.

This law had already passed in the House, of course – in June 2023. It just needed the governor to sign it into law. And the governor did.

It’s a new Pennsylvania law that we all need to know about.

Race-based discrimination was once common in deeds and, regrettably, still occurs.

Sometimes a deed’s language directs future residents to do something or to refrain from doing something. The language is called a covenant — meaning “a promise made by deed.”

Many old property deeds used covenants to bar people from certain groups from living on the premises, except as employees. For example, language keeping a property deed in the hands of “Caucasians” appears in thousands of deeds in Pennsylvania, as in tens of thousands of deeds across the nation.

The U.S. Supreme Court, in the 1948 case Shelley v. Kraemer, declared that discriminatory covenants — which were common at the time — offend the Constitution and have no legal authority. The Supreme Court examined race-based covenants written by homeowners’ associations for their subdivisions. Based on the excluding words, the associations would take legal action against non-whites who lived in the neighborhoods, to keep them out or force them out.

State courts had sided with the associations. But representatives for the excluded households fought back in federal court. Finally, the case reached the Supreme Court, which declared that racial discrimination offends the Constitution. So, although deeds are exchanged by private parties, legal systems are not allowed to enforce race-based covenants by deed.

It Is Now Against the Law to Include Race Discrimination on Property Deeds.

We now have a federal statute that bars the practice as well. Since 1968, the Fair Housing Act has outlawed covenants that discriminate against constitutionally protected categories of people.

Here’s the rub. Old deeds still linger in the county deed recorders’ offices across the United States. Any language at all, once it’s written on a deed, can’t be deleted. At least that is the traditional view.

Sure, we now know the offensive language has absolutely no legal effect, but that doesn’t make it harmless. That’s why some states are finding ways to bend those legal deed traditions in the direction of fairness.

In 2022, Missouri passed a new law mandating the deletion of housing restrictions based on race, religion, or national origin from all deeds when they change hands. Individuals and title agents who prepare deeds for recording must take out the old text first, before going to record the deed. The office of the recorder of deeds, in any Missouri county, is now able to reject deeds until they are scrubbed of the unconstitutional restrictions.

Now, Pennsylvanians Can at Least “Repudiate” Offensive Deed Language.

Back in Pennsylvania, the new law allows private landowners, associations or unit owners to file a repudiation form. The offending text is then struck from a deed or charter, leaving the rest of the deed intact and enforceable. The repudiation is official, visible, and part of the county records.

It might seem symbolic at this point. After all, the exclusions have been declared unconstitutional and unenforceable.

But the social stakes are high in this law. Rep. Fleming said discriminatory deed language can’t be separated from “massive inequality in wealth and home ownership rates.” Fleming says the offensive phrases are evidence of the systemic exclusion of Blacks and other minority groups from more desirable neighborhoods. Exclusionary practices have long kept high-value real estate opportunities off-limits to minority households, leading to financial inequalities that linger to this day.

With this context, Pennsylvania’s new law takes one step — a significant step — to meaningfully acknowledge and reject the unequal status quo. It lets property owners and neighborhood associations disavow discriminatory covenants with a simple form. The Pennsylvania Recorders of Deeds Association is involved in drafting the form. The deed recorders’ association works to “promote within its membership individual enrichment to achieve greater public service, encourage communication and learning among its members and to reflect credit to the office of Recorder of Deeds.”

The Association’s work on this project certainly reflects credit on the office.

It’s Sweeping the Nation: About Half the States Have Taken Action.

Twenty-two states had enacted repudiation laws when Pennsylvania wrote its law. This makes Pennsylvania U.S. state #23 to enable residents to nullify or repudiate unconstitutional deed covenants and restrictions.

To be clear, repudiation is not the erasure of history. Instead, it announces the owner’s clear rejection of the discrimination.

“We are trying to acknowledge that it did happen,” Rep. Fleming told Harrisburg news reporters. But the point of the new law is to “give homeowners a path forward to say, I don’t agree with this.”

As for other states working on this issue, we’ve covered some of their stories at Deeds.com. This shift continues to gather momentum. We continue to encourage homeowners, sellers, buyers, and residents in general, to support the formal rejection of harmful, unconstitutional covenants.

If You Do Find an Offensive Restriction on Your Deed, What Can You Do to Confront It?

Check with your county recorder of deeds. Ask if it’s possible to record a termination and release of the restrictive covenant. This document states why a restrictive covenant is unconstitutional and unenforceable and prohibited by state and federal and law. It states that the language is stricken from the deed with the written consent and approval of the county.

To explore further questions about your own deed, please consult a real estate law expert in your state.

Supporting References

PA House of Reps., via PAHouse.com: Historic Bill to Repudiate Racially Restricted Deed Covenants Passes PA Senate Pennsylvania House Democratic Caucus (Dec. 14, 2023; announcing H.B. 1289 in Pennsylvania).

Pennsylvania General Assembly (Regular Session 2023-2024), House Bill 1289: Removing Racially Restrictive Deed Covenants (amending Title 68 of the Pennsylvania Consolidated Statutes, in residential real property, providing for repudiation of discriminatory real estate covenants; Dec. 14, 2023).

Rep. Justin Fleming, via Facebook: Fleming Urges Support Against Restrictive Covenants: House video, via YouTube: End Restrictive Covenants (video dated Dec. 22, 2023).

Rep. Chris Rabb, via Facebook: personal story delivered on the Pennsylvania House floor, on the effect of race-based restrictions and the point of formal repudiation; see also Rep. Chris Rabb, via YouTube: End Restrictive Covenants (video taken on Jun. 28, 2023).

Peter Hall, for the Pennsylvania Capital-Star blog The Lead, via PennCapital-Star.com: Homeowners Could Reject Racist Deed Restrictions Under Bill Passed in Pennsylvania House (Jun. 29, 2023).

Jerome B. Frank for King, Spry, Herman, Freund & Faul, LLC: PA Legislature Seeks to Remove Racially Restrictive Covenants (Jul. 26, 2023).

ABC 27 Harrisburg on ABC27.com (Nexstar Media Inc.): Racially Restrictive Deeds Repudiated by Pennsylvania House (broadcast on WHTM, Jun. 28, 2023).

And as linked.