Uniform Laws Update

ULC Drafting a New Uniform Act on Restrictive Covenants in Deeds

Uniform Laws Update provides information on uniform and model state laws in development as they apply to property, trust, and estate matters. The editors of Probate & Property welcome information and suggestions from readers.

Uniform Laws Update Editor: Benjamin Orzeske, Chief Counsel, Uniform Law Commission, 111 N. Wabash Avenue, Suite 1010, Chicago, IL 60602.

A racially restrictive covenant is a provision in a deed or declaration that prevents the affected real property from being sold to or occupied by certain persons. Throughout the first half of the last century, developers and sellers of real estate routinely used restrictive covenants to bar African Americans, and sometimes other ethnic and religious groups, from occupying or owning residential property in neighborhoods reserved for white people.

The US Supreme Court held in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), that Section 1982 of the Civil Rights Act of 1966 bars racially restrictive covenants, and shortly thereafter Congress enacted the Fair Housing Act, which makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling” or to “make, print, or publish…any notice, statement, or advertisement, with respect to the sale or rental of any dwelling that indicates any preference, limitation, or discrimination based on race.” 42 U.S.C. § 3604(b), (c).

Even though racially restrictive covenants have been unenforceable for over 50 years now, the historical record of racism remains on the title to millions of residential properties in the United States, duly filed in local recording offices and available for public viewing. These vestiges from the not-so-distant past may have no legal effect, but they serve as a stark reminder of the officially sanctioned racism that resulted in segregated development patterns still visible in many American cities and towns.

African American and Hispanic purchasers of real estate may feel understandable anger or pain upon discovering that the title to their home contains a lingering reminder of racist housing policies. White homeowners may likewise take offense at the presence of a restrictive covenant, either because of their commitment to racial equality or out of concern that others might perceive the covenant as evidence of the buyer’s tolerance for discrimination (or both). But homeowners of all races who want to remove restrictive covenants from recorded documents may be stymied by the local recording office’s need to preserve the integrity of the chain of title.

A few states have begun to address the issue with procedures that allow the removal of offensive terms from publicly recorded documents while ensuring that historical land records are maintained. Procedures vary from state to state, however, and can cause confusion for title insurers and others searching land records.

The state procedures adopted to date take one of three basic approaches. Delaware and Maryland enacted statutes allowing a property owner to request redaction of offensive covenants. If the county attorney agrees the covenant is unenforceable, the recorder redacts the covenant from the public copy of the document but maintains the unredacted original version in the official records, sequestered from viewing without a subpoena or court order.

Minnesota, Nevada, and Virginia do not permit redaction of recorded documents but allow the owner of the property affected by a restrictive covenant to record an additional form that “discharges” or “releases” the covenant permanently. A similar law in California requires a statement in 14–point boldface text on the cover page of any document that contains a restriction based on race or another protected class, stating that the restriction violates state and federal laws and is unenforceable.

Finally, Oregon adopted a statute allowing the owner of the property affected by a restrictive covenant to petition a court for a judgment removing the restriction from title to the property. The statute does not direct the recorder to redact the covenant from the public record, but the court order can be recorded as evidence of the covenant’s removal.

After monitoring these developments in the various states, the American Land Title Association proposed a project to the Joint Editorial Board for Uniform Real Property Acts to develop a uniform law governing the removal of restrictive covenants from deeds and other recorded documents, such as condominium declarations. The Uniform Law Commission recently acted on the recommendation and appointed a drafting committee, cochaired by Commissioners Brian Flowers of the District of Columbia and Barry Hawkins of Connecticut. Professor Richard R.W. Brooks, the Emilie M. Bullowa Professor of Law at New York University, will serve as the Reporter. Karen Boxx and Jennifer Litwack will serve as Advisors from the ABA Section of Real Property, Trust and Estate Law. Other participants will include observers representing civil rights organizations, the property records industry, and many other interested stakeholders.

The committee will meet periodically over the next year to analyze the various procedures currently available in the states and attempt to draft a new uniform act that can help standardize procedures for the release or redaction of racially restrictive covenants while ensuring the integrity of land records, including the historical chain of title. RPTE members can sign up to follow the committee’s work and submit comments at www.uniformlaws.org.

The primary source for this edition of Uniform Laws Update is a memorandum by Professor R. Wilson Freyermuth, Executive Director of the Joint Editorial Board for Uniform Real Property Acts, to the ULC Scope and Program Committee (June 15, 2021) (on file with this column’s editor), recommending the formation of a new drafting committee on the release or expungement of racially restrictive covenants.

Published in Probate & Property, Volume 36, No 2 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.