{"id":1296,"date":"2021-03-15T08:00:21","date_gmt":"2021-03-15T12:00:21","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=1296"},"modified":"2024-04-25T23:20:03","modified_gmt":"2024-04-26T03:20:03","slug":"race-restrictions-still-appear-on-deeds-theres-a-movement-afoot-to-delete-them","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/race-restrictions-still-appear-on-deeds-theres-a-movement-afoot-to-delete-them\/","title":{"rendered":"Race Restrictions Still Appear on Deeds. There\u2019s a Movement Afoot to Delete Them."},"content":{"rendered":"\n
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Imagine the shock of reading your deed carefully and finding this rule: \u201cThis property shall not be resold, leased, rented or occupied except to or by persons of the\u00a0Aryan\u00a0race.\u201d The Seattle-based Windermere Real Estate\u00a0company doesn\u2019t want to put up with such findings any more. This year, it\u2019s working with its clients to use Washington state law to delete offensive deed language<\/a>.<\/p>\n\n\n\n

Under Washington law, an owner or resident of a property\nwith an invidious deed restriction may have it stricken from the public\nrecords. This recent addition to the law makes it easier for Washingtonians who\nhit walls trying to remove discriminatory language from the title of their\nproperty. <\/p>\n\n\n\n

In related news, Notarize, an online notary\u00a0startup<\/a>, now offers free notarizations to remove offensive covenants. Notarize calls it a matter of digital inclusion. The company\u2019s\u00a0website<\/a>\u00a0supplies assistance for Washingtonians, and will be expanding the service to Arizona, California, Colorado, Nevada, Idaho, and Oregon. In many other states, though, there is neither a process for removal not any pending legislation to deal with the matter. <\/p>\n\n\n\n\n\n\n\n

How Race-Based Deed Restrictions Came Into Existence<\/h2>\n\n\n\n

Restrictive covenants in a deed stop homeowners from doing something with a property they buy. Restrictions in a deed might, for example, commit homeowners to maintain their homes to match an area\u2019s historical character. But they also have a troubling history as tools to discriminate and exclude. As Suzanne Spellen wrote in the Brownstoner<\/a>, \u201cIt seems that people have always looked for a way to control the use of land or property, and\/or the people who are allowed to live on it.\u201d<\/p>\n\n\n\n

Race-based housing restrictions had hardened into custom by\nthe early 1900s, to prevent integration of Black, Jewish, Asian, Italian,\nRussian, Muslim, Hispanic and other U.S. residents at different times in the\ncountry\u2019s history into many residential areas across the country. Embedded into\nthe language of legally binding contracts, they had to be followed, or owners\ncould lose their property. <\/p>\n\n\n\n

The real estate industry backed these restrictions. State\ncourts allowed and enforced them. In the 1926 decision Corrigan v.\nBuckley,<\/em> the U.S. Supreme Court itself upheld the use of racial covenants.<\/p>\n\n\n\n

In 1948, the Supremes reversed themselves. Through the landmark\ncase of Shelley v. Kraemer<\/em>, the Supreme Court deemed race restrictions\nin deeds unconstitutional, and declared that such clauses could not be enforced.\nThree justices recused themselves. They owned property with racial covenants.<\/p>\n\n\n\n

Owners, brokers, lenders and real estate agents continued to\nrepeat patterns of segregation after 1948.<\/p>\n\n\n\n

Lenders and title insurers were steadily creating the\nnow-infamous practice of redlining <\/em>\u2014 deliberately picking and rejecting\napplicants for certain mapped areas. This scuttled opportunities for\ngenerations, as those who were excluded lost the ability to build\nand pass on wealth through investing in real estate<\/a>. Redlining was a\ncommon, constant practice up until the Fair Housing Act of 1968 banned housing discrimination\non the basis of race, color, religion, or national origin, more than a century\nafter the United States did away with slavery.<\/p>\n\n\n\n

Still, tens of thousands of race-based deed restrictions linger in county records. Many are not digitized and will take years to uncover, as Teresa Boardman wrote for Inman<\/a>, who quotes covenants in Minnesota, such as: \u201cThe grantee cannot sell, lease or rent said real estate to any one of the black, brown, yellow or Semitic races.\u201d <\/p>\n\n\n\n

When Prejudice Runs With the Land <\/h2>\n\n\n\n

Unless a covenant\u2019s language ends the restriction at a\ncertain time, it runs with the land and binds everyone else in the future chain\nof title. It will always be visible in a title search. This is why, to\nthis day, many\nproperty deeds still contain hurtful restrictions<\/a>. <\/p>\n\n\n\n

More than a decade ago, California lawmakers passed a bill to confront unconstitutional restrictions based on race or religion, sexual identity or orientation, marital or familial status, disability, ancestry or income source. The bill would have provided Restrictive Covenant Modification forms<\/a>, through state\u2011mandated local programs enlisting county attorneys and deed recorders. But Assembly Bill 985 was vetoed in 2009 by Gov. Arnold\u00a0Schwarzenegger<\/a>, who said: \u201cThe restrictive covenants this bill would redact from certain recorded documents are already illegal and void under existing law.\u201d<\/p>\n\n\n\n

It was, of course, a circular legal conversation. After all, if such a restriction is illegal and void, why can\u2019t it be deleted? The issue isn\u2019t just whether they\u2019re illegal; it\u2019s whether they can continue to offend and hurt in perpetuity. So, the counties are now stepping up and making it happen. Orange County<\/a> did so in 2020. <\/p>\n\n\n\n

As with California and other states, oppressive restrictions are void under the Discriminatory Provisions section of\u00a0Texas Property Code<\/a>, which states:<\/p>\n\n\n\n

If a restriction that affects real property, or a\nprovision in a deed that conveys real property or an interest in real property,\nwhether express or incorporated by reference, prohibits the use by or the sale,\nlease, or transfer to a person because of race, color, religion, or national\norigin, the provision or restriction is void.<\/em><\/p>\n\n\n\n

Texas resident Jessica Richardson discovered one such void covenant in her deed in 2019.\u00a0She showed CBS19<\/a>\u00a0the deed, which said that the only Black people who could reside in the home were servants. That\u2019s when Texas State Senator Bryan Hughes<\/a> (R-Mineola) introduced SB 222\u00a0to enable deletion of such clauses. If, as expected, the provision is enacted, Texans will be able to use forms to have county recorders remove the offending deed language. The new provisions is to take effect September 21, 2021. <\/p>\n\n\n\n

New York is now considering a similar bill<\/a>.<\/p>\n\n\n\n

Termination and Release of Restrictive Covenant<\/h2>\n\n\n\n
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If you find such a restriction in your deed, what can you\ndo?<\/p>\n\n\n\n

Check with your county to find out if the recorder of deeds\nwill accept and record a Termination and Release of Restrictive Covenant<\/em>\ndocument.<\/p>\n\n\n\n

This document should:<\/p>\n\n\n\n