Restrictive covenants are binding obligations not to do something with your property. These restrictions on real property are normally contained in a deed.
Restrictive covenants originated to keep industry out of residential areas. To this day, homeowners’ associations use deed restrictions in order to make condo owners adhere to established aesthetics or the property’s historical character.
They have also been used as grotesque tools of discrimination.
The first racially restrictive covenants emerged in individual, late-19th-century agreements in Massachusetts and California. The practice of using covenants to keep members of minority groups from moving into developments became widespread in the 1900s, as the real estate industry embraced it.
Owners who defied a restrictive covenant could be fined or even lose the home. State courts were willing to back up the real estate industry and enforce the invidious terms. The supreme courts of no less than 14 states upheld racial covenants against challengers, writes Richard Rothstein, the author of The Color of Law: A Forgotten History of How Our Government Segregated America.
The U.S. Supreme Court itself, through its 1926 decision Corrigan v. Buckley, backed the states and upheld the deed restrictions until 1948, when the Supremes issued their landmark holding in Shelley v. Kraemer and finally deemed race restrictions in property deeds unconstitutional. (Notably, three of the justices had homes with race-based restrictions and, therefore, needed to recuse themselves.)
Indelible Ink?
Covenants in deeds run with the land. Unless the terms of the restriction set a time limit, the restriction will bind all later title holders, in perpetuity. It will always remain in the deed language.
A title search will show such a covenant — which might, for example, expressly prohibit people “of any race other than the Caucasian race” from using or owning any building on a parcel of land. Many of these restrictions include exception allowing the owner to keep hired servants at home.
Even after Shelley v. Kraemer, the Federal Housing Administration condoned restrictive properties by subsidizing them with low-cost loans. The FHA “even provided model language attached to the deeds that builders could use to ensure that no purchaser could resell to an African-American,” Richard Rothstein has observed.
Then came the Civil Rights era. The Federal Fair Housing Act in 1968 explicitly outlawed the inclusion of race-based covenants in deeds.
Still, housing discrimination was far from over. Redlining emerged — the practice, on the part of lenders and insurance companies, of selectively disapproving loan or insurance applications.
And the race-based deed restrictions written in the past stayed on the deeds. Today’s owners receive a mound of closing documents. They typically have no indication that the chain of title contains a racially restrictive covenant. Sure, that invidious language is unenforceable today — but race-based restrictions are more than just ugly. They are still hurtful, and they may play a role in de facto segregation today. North Carolina NAACP housing chair Stella Adams told Asheville, NC Mountain Xpress that many of the communities in which these covenants are common have yet to embrace diversity.
The ink on a restrictive covenant is not indelible everywhere. Some states, such as Washington, now have statutes enabling owners to purge their hurtful deed restrictions. That said, removal might not be the optimal response to the discovery of race-based exclusionary language. By erasing the ink, we might lose track of historical reality and forfeit a teachable moment.
This is not to say that it’s easy to erase.
The race-based covenant that disgraces the title language for the Betton Hills subdivision of Tallahassee, Florida subjects homebuyers to the agony of “reliving the residual racism” in the area. The city leaders want the terms stricken. Yet although there is consensus that the offensive covenant needs to go, extracting it from the homeowners’ deeds has proved a daunting if not impossible task. The city has hit a wall looking for a legal mechanism to delete the language. Counties wanting to nullify restrictive covenants have been surprised and alarmed to find their hands tied — even in Washington, where the law permits the “owner, occupant, or tenant of the property” who has one of the unconstitutional covenants to “cause the provision to be stricken from the public records.”
Methods of Repudiation
For individually held deeds, we might turn to an alternative response. After obtaining county approval, the homeowner may take a stand on the matter through a notarized deed addendum known as a termination and release of the restrictive covenant. The termination document:
- States that the covenant is not required pursuant to any county requirement.
- States that the owner desires to terminate, release, and discharge the restrictive covenant.
- States that the county’s agreement is required, and that the county has agreed, to allow the termination and release of the covenant.
- Takes notice that state and federal and law prohibit housing discrimination.
- Declares the homeowner’s reprehension of the hurtful and unconstitutional restriction.
In The Color of Law, Richard Rothstein recommends adding this language to the deed: “We, [your name], owners of the property at [your address], acknowledge that this deed includes an unenforceable, unlawful, and morally repugnant clause excluding African Americans from this neighborhood.” Following this, add language that expressly disavows the covenant, and declare that all people are welcome, enthusiastically and unequivocally.
At Deeds.com we acknowledge our responsibility to engage the public on the harm done by race-based restrictive covenants in deeds. We encourage deed holders to examine their chains of title, and take action to repudiate offensive and harmful language.
References:
Nicholas Deshais, Spokane Spokesman-Review (May 2019). Racist Provisions on Home Deeds can’t Be Removed by County Officials, Court Commissioner Rules. Available at: https://www.spokesman.com/stories/2019/may/03/racist-provisions-on-home-deeds-cant-be-removed-by/
Jon Elliston, Asheville, NC Mountain Xpress (May 2019): The Legacy of Asheville’s Racial Real Estate Covenants. Available at: https://mountainx.com/news/the-legacy-of-ashevilles-racial-real-estate-covenants/
Bill Cotterell, Tallahassee Democrat (Jul. 2019): Race Restrictions Are Meaningless, So Why Have Them? Available at: https://www.tallahassee.com/story/opinion/2019/07/04/race-restrictions-meaningless-so-why-have-them-bill-cotterell/1632170001/
TaMaryn Waters, Tallahassee Democrat (Jul. 2019): Attorney Wants Outdated, Racist Covenant Language in Betton Hills Stripped. Available at: https://www.tallahassee.com/story/news/money/2019/07/01/attorney-wants-outdated-racist-covenant-language-betton-hills-stripped-tallahassee/1546406001/
Nancy H. Welsh, Racially Restrictive Covenants in the United States: A Call to Action (2018). Available at: https://deepblue.lib.umich.edu/bitstream/handle/2027.42/143831/A_12%20Racially%20Restrictive%20Covenants%20in%20the%20US.pdf?sequence=1&isAllowed=y
Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (Liveright, 2017).
National Public Radio: Richard Rothstein Interviewed by Terry Gross (May 2015). Historian Says Don’t ‘Sanitize’ How Our Government Created Ghettos. Available at: https://www.npr.org/templates/transcript/transcript.php?storyId=406699264