Racially Restrictive Covenants: Island County, WA Recommends New Resolution

Leaders in Island County, in Washington State, hope to adopt a resolution for atonement. The resolution will officially apologize to those people and households kept out of the county by race-based deed restrictions.

A deed restriction that “runs with the land” stays on the property if the deed changes hands. Once a home was marked as whites-only, it stayed that way. And one group had an edge on everybody else for decades.

Recently, county recording offices across the states have begun purging prejudice from deeds. Island County wants to make a clear statement as to the substantial harm that counties enabled.

Deeds Are for Everyone (But Once They Weren’t)

Language about race in deeds was common in many places across the country in the first half of the 1900s. Whites-only language was written into commercial as well as residential real estate deeds. Developers wrote such language into the covenants, conditions and restrictions (CCRs) of homeowners’ associations as well. Lenders expected it. Deeds were held up like fences to keep neighborhoods from becoming racially diverse.

When the Fair Housing Act of 1968 finally came into effect, this activity stopped. But the deeds that already contained the unconstitutional language were still around. It had long been said (including by deed recorders, real estate lawyers, and title agents) that a deed could never be changed. If it offended state anti-discrimination laws, or violated the Fair Housing Act, a deed restriction just wouldn’t be enforced.

Times are changing. So are deeds. Officials now confront harmful deed restrictions in Pennsylvania, Illinois, Missouri and more.

Washington’s Racial Covenants Project Makes Headway

Washington passed a law that pays for the examination of “existing recorded covenants and deed restrictions” to find “racial or other unlawful restrictions on property ownership.” This covers deeds transferred from New Year’s Day 2022 on. The University of Washington and Eastern Washington University have been sifting through deeds, looking for the ones that contain discriminatory bans on ownership or use of real estate.

When they find one of these deeds, the researchers notify the deed holder and the county auditor where the properties exist. The notification comes along with instructions on how to legally renounce the language.

As part of this state-based Racial Restrictive Covenants Project, Island County found 900+ deeds, in 22 different developments, that described homes as off-limits to all minorities. The county leaders noted that keeping minority households out of the county’s most desirable property has had an impact on the Black community for generations. Indeed, race-based deed restrictions have shaped where people live to this day. This history means a lack of generational wealth for minority households. It makes homeownership chronically unavailable for some.

So, today’s county leaders sense the need to say something about what yesterday’s leaders enabled. 

The statement they’ve hashed out has bipartisan backing. Commissioner Melanie Bacon, a Democrat, wrote up the text for the county resolution. Commissioner Jill Johnson, who’s a Republican, greenlighted the text for formal consideration.

A third commissioner recognized the initiative as a way to “understand the mistakes of the past so we can move on to a more equitable future.”

Equal access to deeds is not only an issue of financial fairness; it’s a matter of health and well-being. For example, research shows a connection between racial deed restrictions and overheating hazards.

What the Resolution Says

Race-based language in deeds can go unnoticed, even when deeds change hands. But when the deed holders finds such language, what recourse do they have?

Island County, Washington is striving to set an example.

The draft resolution observes:

• Deed restrictions were once common; they excluded minority groups throughout the nation.

• Race-related restrictions are a stain on Island County’s history.

• Former commissioners could have condemned the ongoing discrimination. Instead, they helped to prop it up.  

• Now, these restrictions are unlawful across the United States.

• Deeds to homes in Island County have covenants that expressly restrict non-white people from living in the homes.

• Island County residents who own homes with offensive deed covenants can have their deeds reformed at the auditor’s office.

As the commissioners have agreed and stated publicly, there should be no controversy about taking responsibility for unfair and institutionalized patterns of practice. The resolution is now lined up for consideration at a future meeting. At that time, commissioners could amend the resolution to be clear that deeds with harmful language can be modified by Island County at no charge.

This can happen because the state of Washington has already made modification legal.

How Washington Began Allowing Deed Modifications

Since 2019, property owners in Washington have been able to record a restrictive covenant modification document. The new recording identifies the original deed, stating that the “referenced original instrument contains discriminatory provisions that are void and unenforceable” under state and federal law, and that the language is stricken from the chain of title.

That done, the original deed is still in the county records.

In 2021, Washington went a step further. Lawmakers created a new way to remove the restrictions from original deeds. Anyone involved with the real estate could come forward: deed holders, residents, renters, or HOA board members. The method is to petition the superior court to scrub the offensive language from the chain of title.

With a court order, a new deed is permitted to go into the county records. The new document is accompanied by a certified copy of the court-voided deed. The county auditor is responsible for recording the copy of the modified property deed, and a notice of the court’s modification of the original. Public notice is created that the original has been replaced with a new deed. Then the original is taken out of the physical chain of title.

The original deed can then be sent to the state archives. This way, what happened in history is not erased.

Deed Law Can, and Does, Evolve

Taking racial covenants out of a property’s chain of title is new to U.S. law. But here’s what we know so far. Deed holders do have the right to remove discriminatory restrictions — even if they were designed to run with the land, as racial covenants were. State supreme courts should validate county and state efforts to make methods available. And yes, it can be done without erasing history.