Lew Sichelman

A little-known but highly effective legal group is working on drafting model legislation that would help property owners remove discriminatory, restrictive covenants from their deeds. 

Deeds often contain all kinds of restrictions, especially in association-run communities. They might cover building height limitation, lease restrictions and even what color you can paint your house. But the Chicago-based Uniform Law Commission’s initiative is aimed squarely at racial discrimination. 

Even though the Supreme Court struck down racially based covenants almost 75 years ago – and Congress passed the Fair Housing Act, outlawing discrimination on the basis of race or ethnicity in the sale or rental of housing, in 1968 – racially motivated restrictive covenants can still be found in real estate titles practically everywhere. 

Racial Covenants Once Common 

Seattle, for example, is rife with racial deed restrictions. 

“The language of segregation still haunts Seattle,” a local civil rights group reports. “It lurks in the deeds of tens of thousands of homeowners living in neighborhoods outside of the Central Area and the International District.” 

The Seattle Civil Rights and Labor History Project has found racially restrictive covenants attached to more than 15,000 properties in the region. Here’s a sample of what some say: 

• “No person or persons of Asiatic, African or Negro blood, lineage or extraction shall be permitted to occupy a portion of said property.” 
• “The lot, nor any part thereof, shall not be sold to any person either of whole or part blood of the Mongolian, Malay or Ethiopian races, nor shall the same nor any part thereof be rented to persons of such races.” 

• “No person of any race other than the white race shall use or occupy any building or any lot, except this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant.” 

Similar language has been well documented in St. Louis, Missouri; Chicago; Hartford, Connecticut; Kansas City, Missouri; Baltimore; and Washington, D.C. The Philadelphia Federal Reserve has found more than 4,000 instances of racial covenants in deeds in the City of Brotherly Love. And in Chicago, racially motivated covenants “are enshrined in the deeds of properties” in neighborhoods throughout the city, according to a Lake Forest College report. 

In the San Francisco Bay area, a newspaper ad once proclaimed that “No negroes, no Chinese, no Japanese can build or lease” in Rockridge Park. (Note that the word “Negroes” was not even worthy of a capital N.) In Minneapolis, one deed said that neither the land nor buildings on it “shall never be rented, leased or sold, transferred on conveyed to, nor shall be occupied exclusively by person or persons other than of the Caucasian Race.” 

Restrictions weren’t limited to preventing people of color from buying property in certain communities, either. Sometimes they were based on a person’s religion – banning Jews, for example, from living in certain places. 

Unenforceable, But Hurtful 

Such restraints came into vogue with a Supreme Court decision in 1926 that validated their use. The restrictions were part of an enforceable contract, and an owner who violated them risked forfeiting the property.  

Today, even though they are no longer enforceable, these words still linger on paper – and many buyers and sellers find that loathsome. 

The Uniform Law Commission is now taking action to address this.  

The 130-year-old ULC “provides states with nonpartisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law,” the group’s website states. The commission is made up of more than 300 lawyers, judges and law professors, each appointed by their respective states to “research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.” 

The nonprofit recently authorized the appointment of a new drafting committee to develop a law that would, in states that adopt it, allow now-illegal covenants in a property’s title to be expunged or released from the records.  

No timetable has been set, and the steps involved seem somewhat cumbersome. For example, tentative drafts cannot be submitted to the entire commission “until they receive extensive consideration.” However, over its history, the organization has promulgated more than 200 acts, including the Uniform Commercial Code, the Uniform Probate Code and the Uniform Partnership Act.  

Meanwhile, some states are moving forward on their own. Washington has had a law on its books for almost two years that allows owners to submit documentation to strike discriminatory language from the records. But the law does not delete the public record, the Seattle civil rights group reports. 

Last year, Florida passed legislation that extinguishes discriminatory restrictions from deeds and other real estate documents. In Indiana, legislation is in progress that would permit owners to attach a notice rejecting any such covenants as discriminatory, invalid and unenforceable. And in Orange County, California, buyers who need to record property documents with the county can have any discriminatory language expunged for free.  

Going one step further, Orange County officials are now required to notify the district attorney if anyone attempts to record such covenants. 

Lew Sichelman has been covering real estate for more than 50 years. He is a regular contributor to numerous shelter magazines and housing and housing-finance industry publications. Readers can contact him at lsichelman@aol.com.