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Making Strides to Address Restrictive Covenants
By Barbara Pronin
As a harsh reminder of our nation’s past, look at the discriminatory covenants written into law in some American communities as late as the 1940s – land plat restrictions that allowed only Caucasians or Native Americans to own land in those towns.
 
In 1948, the U.S. Supreme Court ruled that enforcement of discriminatory covenants based on race violates the Equal Protection Clause of the 14th Amendment. The legal precedent was codified into law 20 years later on April 11, 1968, when President Lyndon Johnson signed the Fair Housing Act.
 
Still, because offending covenants are typically part of the public record, they must be addressed by legislators on a state-by-state basis. Title companies do not have the legal power to simply redact them. We can and do actively work to bar restrictive covenants found in title searches, in some cases simply crossing out the covenant or blanking it out and stating, “This covenant omitted.” However, simply expunging them can be problematic, as they could impact property rights and the chain of title on affected properties.
 
In the absence of a uniform measure to address such covenants, Senator Tina Smith (D-Minn.) introduced a bill in July 2021 that would create a grant program designed to find and identify them, and fund local governments to digitize public records recognizing communities that decades ago enforced them. The bill was referred to the Committee on Banking, Housing and Urban affairs, but no further action has yet been taken.
 
However, according to the National Conference of State Legislatures, at least ten states have already passed bills barring restrictive covenants based on race or religion. The list includes California, Connecticut, Colorado, Indiana, Nebraska, New York, North Carolina, Ohio, Utah, Washington, and Washington, D.C. 
 
Other states addressing the issue in various ways are Florida, Illinois, Minnesota, Texas and Virginia. In Minnesota, for example, language is added in the deed stating the covenant is no longer enforceable. In Illinois, homeowners can pay $10 and submit a request to their County Recorder to remove the covenants.
 
For those in other communities across the county, discharging such covenants may still be a bureaucratic challenge requiring petitions, court appearances and a lot of paperwork. You can learn more about the status of stripping racially restrictive covenants from housing deeds in your state by speaking with a local real estate or housing discrimination attorney.
 
Barbara Pronin is an award-winning writer based in Orange County, Calif. A former news editor with more than 30 years of experience in journalism and corporate communications, she has specialized in real estate topics for over a decade. 

This material is not intended to be relied upon as a statement of the law, and is not to be construed as legal, tax or investment advice. You are encouraged to consult your legal, tax or investment professional for specific advice. The material is meant for general illustration and/or informational purposes only. Although the information has been gathered from sources believed to be reliable, no representation is made as to its accuracy. 

 

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