{"id":709,"date":"2019-07-22T13:39:03","date_gmt":"2019-07-22T17:39:03","guid":{"rendered":"https:\/\/www.deeds.com\/articles\/?p=709"},"modified":"2024-04-25T23:21:05","modified_gmt":"2024-04-26T03:21:05","slug":"is-a-hurtful-deed-restriction-lurking-in-your-deed","status":"publish","type":"post","link":"https:\/\/www.deeds.com\/articles\/is-a-hurtful-deed-restriction-lurking-in-your-deed\/","title":{"rendered":"Is a Hurtful Deed Restriction Lurking in Your Deed?"},"content":{"rendered":"\n
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Restrictive\ncovenants are binding obligations not to do something with your property. These\nrestrictions on real property are normally contained in a deed.<\/p>\n\n\n\n

Restrictive\ncovenants originated to keep industry out of residential areas. To this\nday, homeowners\u2019 associations use deed restrictions in order to make\ncondo owners adhere to established aesthetics or the property\u2019s historical\ncharacter.<\/p>\n\n\n\n

They have\nalso been used as grotesque tools of discrimination.<\/p>\n\n\n\n\n\n\n\n

The first\nracially restrictive covenants emerged in individual, late-19th-century\nagreements in Massachusetts and California. The practice of using\ncovenants to keep members of minority groups from moving into\ndevelopments became widespread in the 1900s, as the real estate industry\nembraced it.<\/p>\n\n\n\n

Owners who\ndefied a restrictive covenant could be fined or even lose the home.\nState courts were willing to back up the real estate industry and enforce\nthe invidious terms. The supreme courts of no less than 14 states upheld racial\ncovenants against challengers, writes Richard Rothstein, the author of The Color of Law: A Forgotten History\nof How Our Government Segregated America<\/em>. <\/p>\n\n\n\n

The U.S.\nSupreme Court itself, through its 1926 decision Corrigan v. Buckley<\/em>, backed the states and\nupheld the deed restrictions until 1948, when the Supremes issued\ntheir landmark holding in Shelley\nv. Kraemer<\/em> and finally deemed race restrictions in property\ndeeds unconstitutional. (Notably, three of the justices had homes with\nrace-based restrictions and, therefore, needed to recuse themselves.)<\/p>\n\n\n\n

Indelible\nInk?<\/h2>\n\n\n\n

Covenants in\ndeeds run with the land. Unless the terms of the restriction set a time limit,\nthe restriction will bind all later title holders, in perpetuity. It\nwill always remain in the deed language.<\/p>\n\n\n\n

A title\nsearch will show such a covenant \u2014 which might, for example, expressly prohibit\npeople \u201cof any race other than the Caucasian race\u201d from using or owning any\nbuilding on a parcel of land. Many of these restrictions include exception\nallowing the owner to keep hired servants at home.<\/p>\n\n\n\n

Even after Shelley v. Kraemer,\u00a0<\/em>the Federal Housing Administration condoned restrictive properties by subsidizing them with low-cost loans.\u00a0The 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<\/a>.<\/p>\n\n\n\n

Then came\nthe Civil Rights era. The Federal Fair Housing Act in 1968 explicitly outlawed\nthe inclusion of race-based covenants in deeds.  <\/p>\n\n\n\n

Still,\nhousing discrimination was far from over. Redlining emerged \u2014 the practice, on\nthe part of lenders and insurance companies, of selectively disapproving loan\nor insurance applications.<\/p>\n\n\n\n

And the race-based deed restrictions written in the past stayed on the deeds. Today\u2019s owners receive a mound of closing documents. They typically have no indication that the chain of title contains a racially restrictive covenant. Sure, that\u00a0invidious\u00a0language is\u00a0unenforceable today \u2014 but race-based restrictions are\u00a0more than just ugly. They are still hurtful, and they may play a role in de facto <\/em>segregation today.\u00a0North Carolina NAACP\u00a0housing chair Stella Adams\u00a0told\u00a0Asheville, NC Mountain Xpress<\/a> that\u00a0many of the\u00a0communities in which these covenants are common have yet to\u00a0embrace\u00a0diversity.<\/p>\n\n\n\n

The ink on a\nrestrictive covenant is not indelible everywhere. Some states, such as\nWashington, now have statutes enabling owners to purge their hurtful deed\nrestrictions. That said, removal might not be the optimal response to\nthe discovery of race-based exclusionary language. By erasing the ink, we might\nlose track of historical reality and forfeit a teachable moment.<\/p>\n\n\n\n

This is not\nto say that it’s easy to erase.<\/p>\n\n\n\n

The race-based covenant that disgraces\u00a0the title language for the Betton Hills subdivision\u00a0of Tallahassee, Florida<\/a>\u00a0subjects homebuyers to the agony of “reliving the residual racism” in the area. The city leaders\u00a0want the terms\u00a0stricken. 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<\/a>\u00a0have been surprised and alarmed\u00a0to find their hands tied \u2014 even in Washington, where the law permits\u00a0the \u201cowner, occupant, or tenant of the property\u201d who has one of the unconstitutional\u00a0covenants to “cause the provision to be stricken from the public records.\u201d<\/p>\n\n\n\n

Methods\nof Repudiation<\/h2>\n\n\n\n

For\nindividually held deeds, we might turn to an alternative response. After\nobtaining county approval, the homeowner may take a stand on the\nmatter through a notarized deed addendum known as a termination and\nrelease of the restrictive covenant. The termination document:<\/p>\n\n\n\n