States Scrub Racial Deed Restrictions From the Records

Missouri’s on a mission — to end racial deed restrictions. Its new law would require deletions of language regarding anyone’s race, religion or national origin from any deeds recorded from now on.

Some Missouri homes have deed language that dates back a century, barring people from groups “other than the Caucasian race” from buying or renting homes. The language could go something like this (to quote a real example):

No persons of any race other than white shall own this property or use or occupy any structure on the property except in the capacity of domestic servants.

Some of the language bans any “Negro.”  Some of it bars Jews or people of Asian ancestry. Some of it excludes people with disabilities.

These restrictive covenants aren’t legally enforceable today. But the discriminatory language lives on, and it’s grotesque. Why should it be allowed to linger?

Real Effects

Needless to say, prejudiced language dampens the enthusiasm of potential buyers. And imagine someone looking for a home who isn’t sure what the language might legally mean. Many people in minority communities have reason to mistrust the process. There is, after all, a long history of agencies and lenders on the wrong side of this issue.

 Discrimination through deed covenants and restrictions were legally valid until just a few decades ago.

Racially restrictive covenants appeared in Massachusetts and California deeds and title abstracts in the late 1800s. Excluding minority groups from developments soon became common. The government itself, through the Federal Housing Administration, had a history of financing whites-only subdivisions, effectively bringing white working families from the cities to the suburbs.

This had real effects — keeping real people’s grandparents out of some of the better serviced areas and out of whole developments.

As the Missouri Independent states:

Beginning in 1935, the federal government required housing developers to sign agreements, or racial deed covenants, that they would not sell these homes to “non-Caucasians,” in order to be eligible for federal construction loans.

Of course, this past practice still has real effects. Homeownership and wealth disparities continue throughout the country. Restrictive covenants are a big reason why financial inequities persist.

Once a deed is in the records, the language is passed on from homeowner to homeowner. Why? Because covenants that run with the land are considered binding. Why wouldn’t any potential homeowner be leery of such language?

Decades of Frustration

In 1948, the U.S. Supreme Court case Shelley v. Kraemer held racial deed restrictions unconstitutional, barred by the 14th Amendment’s Equal Protection Clause. The court forbade the states from enforcing these restrictions, but fell short of actually prohibiting them! And racially restrictive language kept advertising properties to white buyers even after 1948. In 1968, the Federal Fair Housing Act finally banned race-based deed covenants. 

In 1993, Missouri passed its own law to codify Shelley v. Kraemer and forbid enforcement of the race-based restrictions. But, like most states that did this, Missouri failed to create a path for property owners to actually delete this kind of language from deeds where it was already embedded.

For decades after this language was deemed unconstitutional, it still passed from deed to deed, because language in a deed had to be copied exactly for the document to be considered valid. So the language in the old deeds hasn’t budged. When people have tried to delete the offensive words, they’ve come up against the rigid system that says deed language can’t be changed.

The Recorders’ Association of Missouri has lobbied for change. On the Missouri legislature’s second try, it approved a bill permitting the removal of unconstitutional covenants. 

➤ NEWS FLASH: At the end of June 2022, Gov. Mike Parson signed Missouri’s racial covenant deletion law

Missouri’s new law is especially meaningful. J.D. Shelley, in the Supreme Court’s Shelley v. Kraemer case, was a Black homeowner in Missouri.

How Deed Scrubbing Works

Under the Missouri law, title companies, or anyone who creates a deed, must remove the offending language before submitting it for recording. When the recorder of deeds spots improperly exclusive language, it will return the deed for changes before it can be entered into the records.

Residents can check with their particular county’s recorder of deeds to learn more. Deed holders wanting to remove these covenants now, even if they aren’t ready to transfer their deed to a new owner, can pick up a one-page document to fill out and pay $24 for processing.

Missouri has tens of thousands of unconstitutional deeds. It’s now one of the early adopters of laws to have county deed recorders delete racially restrictive language. States that have also done this? California, Connecticut, Illinois, Maryland, New Jersey, and Virginia. Here’s how a few of these states are handling their new policies:

  • On Thursdays, Naperville, Illinois holds public workshops to educate people on how it’s done. Naperville residents are admitted to the Unvarnished: Deed Scrubbing Workshop for free. On New Year’s Day 2022, state law began letting Illinois homeowners delete racially or religiously exclusive deed language.
  • Virginia has been offering help to property owners in deleting discriminatory deed restrictions. Since 2020, Virginia only allows the recording of deed language that complies with Virginia’s Fair Housing Law.
  • In 2021, New Jersey declared that the state’s Law Against Discrimination required “hateful and hurtful legacy” of discrimination to be “forever removed from State land deeds.” A-5390/SB-2861 directs co-ops and homeowners’ associations to remove offending language from their governing documents. Real estate transfers are still good if the hateful language is accidentally recorded, but once it’s found, a formal release can be obtained. Deed holders or association boards can record the Certificate of Release of Certain Prohibited Covenants. (See template and related information.)

Fair Deeds Are Good Deeds  

A project named Mapping Prejudice at the University of Minnesota is collaborating with nonprofits and thousands of volunteers to scan deeds. In the Twin Cities area, Mapping Prejudice workers have found more than 29,000 racial covenants.

The mappers have found similar restrictions in other Minnesota cities and surrounding suburbs. In some subdivisions, all homes have exclusionary covenants — barring anyone “other than Caucasian” from purchasing or renting homes.

Minnesota deed language cannot be removed. Volunteer lawyers with Just Deeds are working with the project to record declarations that renounce the language, though. And check out the Free the Deeds project in Minneapolis, with photos, for an excellent example of standing up for inclusion.

We’re all part of the integrity of our system of deed recording. We can all read our deeds, and take action where it’s needed to make our system fair. And we can all press our states to make it possible to take out unconstitutional and grotesque language. Hats off to all of you who are part of the solution. 

Supporting References

Rebecca Rivas for the Missouri Independent: Missouri Poised to Remove Unenforceable Discriminatory Housing Restrictions in Deeds (Jun. 9, 2022).

Matt Sepic for Minnesota’s MPR News: New Map Highlights Home Deeds With Racist Language in Ramsey County (Jun. 15, 2022).  

Daily Herald: Learn How to Remove Racial Covenants From Housing Deeds (Jun. 29, 2022). Virginia and New Jersey Property Owners Are DELETING Unfair Deed Restrictions (Dec. 13, 2021).

And as linked.

Photo credits: Andrea Piacquadio and Tony Schnagl, via Pexels.