Racially restrictive covenants left an unfortunate legacy of housing segregation in communities across the U.S. Legislation at the state level is helping associations strip away the discriminatory language to right past wrongs.
By Kiara Candelaria ©2019 Community Associations Institute
AFTER A WIDESPREAD SEARCH, a homebuyer finally settles for the perfect place in a community association that has the right location, price, and amenities. Being thorough, the buyer asks to read the association's governing documents to understand the rules and regulations they'll need to follow, and that's when they see it: A covenant stating that non-Caucasian people cannot own, rent, or occupy a home in the community.
Unsurprisingly, the buyer is shocked, angry, and is reconsidering purchasing the home.
That's what happened when criminal defense attorney Anabelle Dias recently found discriminatory covenant language in the documents of the home she intended to buy at the Betton Hills subdivision in Tallahassee, Fla.
The incident prompted a task force to assemble with the goal of addressing racially restrictive covenants in the city's neighborhoods, writes the Tallahassee Democrat. The task force—consisting of Betton Hills Neighborhood Association board members and representatives from two local chambers of commerce, local real estate agents, attorneys, and the president of the Tallahassee branch of the NAACP—had its first meeting in July to discuss ways to strike the language from the covenants.
To the surprise of many, decades after being made legally unenforceable by a U.S. Supreme Court case and again in the Fair Housing Act of 1968, racially restrictive covenants remain written into deeds and governing documents of community associations. Even though they are often rejected by residents as not being reflective of their community's values, removing them is a tough task unless legislation at the state level is available to facilitate the process.
Racially restrictive covenants first appeared in deeds of homes in California and Massachusetts at the end of the 19th century and were then widely used throughout the U.S. in the first half of the 20th century to prohibit racial, ethnic, and religious minority groups from buying, leasing, or occupying homes. Some covenants generally barred “non-Caucasian" groups, while others would list specific races, nationalities, and even individuals with disabilities.
“Even if a covenant is no longer enforceable, it will still be visible in the chain of title, and even within the language of the deed."
These covenants were frequently applied by developers before new houses were sold, often as a condition to receive a low-interest, 20-year mortgage from the Federal Housing Administration (FHA) under the New Deal, which sought to stabilize the housing market after the Great Depression. The FHA required properties to meet appraisal standards that included racial exclusivity, and it sanctioned the use of segregation practices as a way for white neighborhoods to maintain high property values.
“In short, the FHA's underwriting standards advantaged white, deed-restricted, greenfield development, leading to the proliferation of homeowners associations and exclusive suburban communities," writes Nancy H. Welsh, an associate attorney at DLA Piper in Boston, in an April 2018 research paper.
By 1948, when the Supreme Court ruled these covenants to be unenforceable in its Shelley v. Kraemer decision, it's estimated that more than half of all residential housing built in the country carried deeds with racially restrictive covenants, Welsh notes.
Although the Shelley v. Kraemer decision invalidated racially restrictive covenants from being enforced, it wasn't until the passage of the federal Fair Housing Act in 1968 that writing these restrictions into deeds became illegal. The law also made it illegal to refuse to sell or rent a home to any person who was included in a protected class.
“However, the Fair Housing Act did not prescribe appropriate methods of dealing with existing restrictions, a limitation that was predicted by some legal scholars long before the Fair Housing Act was enacted," Welsh points out.
Because covenants are agreements between buyers and sellers of property that run with the land—meaning they are effective perpetually unless the terms include a specific time limit—they become a permanent aspect of the property title. “Even if a covenant is no longer enforceable, as in the case of racially restrictive covenants, they will still be visible in the chain of title, and even within the language of the deed," she explains.
Eliminating a covenant from a deed typically requires written release by the covenantee(s) or the adoption of a new covenant that modifies or releases the obligations of the original one. This process can be time-consuming and expensive, especially for a homeowners association, Welsh adds. That's where existing and proposed legislation at the state level could establish a removal process.
In late May, Rodgers Forge Community Association in Towson, Md., became the first neighborhood in the state to file to remove racially restrictive covenants from its historic deeds using a process outlined in a law that went into effect October 2018.
CAI's Maryland Legislative Action Committee (LAC) worked closely with senate and house committees in the state to provide support and clarify amendments to the Real Property–Deletion of Ownership Restrictions Based on Race, Religious Belief, or National Origin Act. This included eliminating the provisions that would have made failure to change the covenants a violation of Maryland fair housing laws and modifying the restrictions of the bill to be consistent with the operational aspect of homeowners associations.
“Very few Maryland homeowners associations have such covenants, since most were formed after the mid-1970s," explains attorney Thomas Schild of Thomas Schild Law Group in Rockville, Md., and a federal liaison for the Maryland LAC. “There are a few older communities dating back to the 1930s that have discriminatory covenants, and it is up to each community to make the amendments with the assistance of its own legal counsel."
That was the case with Rodgers Forge. The 1,800-home community association identified 85 deeds with discriminatory covenants written between 1933 and 1949 that were incorporated by the neighborhood's developer, says Jaime Fenton, a Rodgers Forge resident and board member who led the committee that examined the documents.
She says that the presence of the racially restrictive covenants had been discussed during several of the community's board meetings in the past year. Del. Steve Lafferty, who represents the Towson area in the state legislature, attended a Rodgers Forge community meeting in 2017 with former Del. Chris West.
“Everyone agreed that we wanted the language removed, but there wasn't a process in place. There wasn't a way to go into the land records and change the language," Fenton notes.
West presented the initial legislation, but it was based on Maryland's Homeowners Association Act, and it would not have covered Rodgers Forge. The community does not have mandatory membership or require assessments to be paid by its residents, says Lafferty. Before the end of the 2018 legislative session, Lafferty clarified the language.
The bill passed in April 2018 with bipartisan support. “I think everybody who came to understand the issue recognized that, although not enforceable under the current law, (these covenants) can be harmful and certainly can lead people to misunderstand the nature of how the communities are more welcoming than the language would suggest," Lafferty says.
Before this legislation, 85% of a community had to approve changing its documents. Now, at least until Sept. 30, an association board can pass a motion that becomes the basis for seeking modifications to its documents. An individual homeowner also can submit a specific modification to have the language in their deed amended. The legislation also temporarily exempts associations from paying fees to the Baltimore County clerk's office to remove their racially restrictive covenants.
The reasons for the Sept. 30 deadline were unclear to Lafferty, as it originated in the Maryland Senate's version of the bill.
While the law has helped establish the process to remove discriminatory language from covenants, it still required Rodgers Forge homeowners and board members to spend considerable time and resources to address the issue. And being the first community to go through the process made it serve as a sort of guinea pig, according to Fenton.
“Different departments had different information, and there was some confusion about which department in Baltimore County was going to ultimately review the covenants and take paperwork, so I think they just needed one community to step forward to then sort out all those details," she explains.
“Not only is it important that people be aware that this kind of discriminatory language exists, but they should know that we're trying to work with communities to ensure that they have at least one remedy."
Lafferty praised the community's endeavor. “For Rodgers Forge to take the initiative and work so hard to submit the changes was really significant," he says. “I was happy to work with them to see what might be the right approach and provide them the documents they needed so they could submit the modifications, but they did all the real heavy lifting."
The Maryland law is similar to measures passed in Washington state, California, and Missouri in the past two decades to address the removal of racially restrictive covenants. In Michigan, State Rep. Sarah Anthony (D-Lansing) is hoping to do the same with a bill (HB 4676) she introduced in late May.
The bill would render discriminatory language in existing deeds void and create a process for homeowners associations to remove the restrictive covenant language by a simple majority vote of its board.
The measure originated because Anthony's constituents in Lansing were finding deeds that had discriminatory language. “I talked to one man who pulled his deed, … and he didn't want to pass on this legacy of discrimination to his kids when he passed down his house," she says.
In July, Anthony was working with stakeholders, organizations, and constituents to collect more information about racially restrictive covenants in her district and statewide. Her office was using social media as a tool to encourage Michigan residents to share a copy of the discriminatory covenants in their deeds as a way to build a case before public hearings for the bill began.
“There are quite a few (communities) that have this restrictive language," she says.
The Michigan LAC is hoping to clarify several procedural aspects of the bill, says Kevin Hirzel, an attorney with Hirzel Law in Farmington, Mich., a fellow in CAI's College of Community Association Lawyers, and co-chair and federal liaison of the Michigan LAC. “There are concerns that the bill does not have a requirement that an individual owner provide notice to any other owners who would be impacted by the removal of a covenant or restriction," Hirzel explains.
The LAC also is concerned that the bill allows for the striking of provisions that “indirectly" discriminate, but the term “indirectly" is not defined.
“The current procedure could potentially allow a homeowner to file a document that purports to remove restrictions that the owner does not want to comply with under the guise that the restrictions are indirectly discriminatory, when in fact they are not," Hirzel says.
Despite these clarifications, he notes that the Michigan LAC fully supports the intent of the bill.
Rodgers Forge has been approached by other associations inside and outside Maryland also looking to remove their racially restrictive covenants. Fenton has shared information about finding the covenants in documents and filing the paperwork.
“This is not just a Maryland issue, it's a national issue, and I think we are likely to hear from people across the country looking for help," she says. “My hope is that all communities across the nation are going to address this issue."
Lafferty mentioned that several Maryland communities in Baltimore County and Towson also approached him.
“Not only is it important that people be aware that this kind of discriminatory language exists and was pretty extensive, but (they should know) that we're trying to work with communities to ensure that they have at least one remedy. It doesn't erase history. I think it just rectifies for future generations that this is not language that is going to be acceptable," Lafferty points out.
For Anthony, the biggest hurdle to pushing her bill forward in Michigan is making other legislators acknowledge the historical ramifications of housing segregation that shape communities today.
“It shapes the resource allocation for different areas of cities. It explains why there are more low-income housing or more apartment buildings in some areas that also have a good proportion of black and brown communities in them," she expands. “If people don't buy the notion that this still has implications today, I encourage folks to look at the demographics of their communities."
For many, including Fenton, removing racially restrictive covenants from deeds and governing documents represents more than a symbolic gesture.
“I think it's an effort to try to address the wrongs with history and to offer an olive branch to communities of color and to immigrants. (We want) to welcome them and let them know these are issues that we care about. We want to diversify our community," she says.
Kiara Candelaria is associate editor of Common Ground™ magazine.
RACIALLY RESTRICTIVE COVENANTS became a commonplace tool in the 1920s to prohibit people of color—mainly African Americans—from buying or leasing homes. Although made unenforceable by the Fair Housing Act of 1968, the clauses remain an example of segregation policies in the U.S. Residents in a community association could possess a deed with this discriminatory language and not even know it.
It's unclear how widespread racist covenants were, which is why research projects have been organized to document the number of deeds in several U.S. cities that still contain discriminatory language. The research projects could give homeowners an idea of whether these clauses exist in their communities and begin a dialogue with board members about establishing a process to remove them.
In the Washington, D.C., metropolitan area, two projects have been tallying the number of racially restrictive covenants over the past three years: Prologue DC's Mapping Segregation, which focuses on covenants of residential properties in the District and the recently created Mapping Racism in Hyattsville, Md. The Hyattsville Community Development Corporation, which is leading the project, estimates that up to 3,000 covenants of homes in the city contain discriminatory language.
In Minneapolis, the University of Minnesota's Mapping Prejudice project has identified 17,500 homes with deeds containing racist covenants in Hennepin County. It estimates finding about 10,000 more before it begins documenting covenants in Ramsey County, also located in the Minneapolis metropolitan area.
Other projects have been documenting covenants with racially restrictive language for several years, including: Mapping Inequality in Richmond, Va.; Mapping Racial Covenants, Property Ownership, and Equity in Charlottesville, Va.; Redlining Louisville in Kentucky; and Segregated Seattle in the state of Washington.—K.C.
COMMUNITY ASSOCIATION BOARD MEMBERS may be unaware that their covenants contain discriminatory language against racial, ethnic, and religious minority groups. If your CC&Rs are more than 30 years old, take a look. It may be time to update the documents anyway.
Speaking generally about updating documents, Ursula K. Burgess, a shareholder at Rees Broome in Tysons Corner, Va., and CAI's 2019 president-elect, explains that they should be updated in a way that best reflect how the community operates and the state of the law. For example, it might make sense to reinforce some of the original prohibitions in the documents while doing away with others that are dated or don't make sense anymore.
“Unfortunately, there's no easy way to amend the documents," says Burgess. “It will only occur if a board makes the commitment to have meaningful revisions."
The board should involve residents in the process by forming a task force or an ad-hoc committee that provides input on the amendments. Once proposed amendments are ready, Burgess recommends sharing them with residents and holding at least one town hall meeting so the changes can be discussed.
When it's time to collect votes, Burgess suggests enlisting volunteers to knock on doors, obtain proxies, and get signatures.
“If the board is willing to put the time into it, and willing to seek help from the members of the community, it can be done," she says. —K.C.
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