It’s Not Over: A Historical and Contemporary Look at Racial Restrictive Covenants

Imagine buying your first house and getting ready to sit down at the closing table. There’s a stack of documents for you to sign, and as you skim through them, something confusing catches your eye. It’s a paragraph in one of your covenant documents that “come with the land” … and it says that someone with your racial or ethnic background is not allowed to own the property. This is what’s called a racial restrictive covenant, and even if you’ve never seen one before (or aren’t a member of one of the commonly restricted races), they have contributed heavily to segregation and real estate-based systemic racism.

If you’re a homebuyer, a homeowner, or a landlord, this topic is relevant to you, though you may not even realize it. These covenants can no longer be legally enforced, but they’re still part of many property documents across the country. And because many racial restrictions are now glossed over at title time, most buyers don’t know how close these covenants hit to home — literally.

Let’s work together to increase our knowledge about racial restrictive covenants with the shared intention of homeownership equality.

What are racial restrictive covenants?

Let’s start by defining covenants: These are binding agreements that often dictate behavior, including the pledge to do (or not do) certain things.

You might be familiar with a marriage covenant, which typically includes a pledge of monogamy or faithfulness, or an HOA covenant, which could regulate behavior surrounding property updates or parking procedures. Just like contracts, covenants are upheld and enforced by courts of law, and they often include stipulations regarding consequences for failure to follow the terms.

In real estate, covenants often (but not always) “run with the land.” The covenant is written into the deed for the property, and therefore the covenant passes automatically from owner to owner along with the house. If a homeowner decides to break a covenant, they could ultimately forfeit ownership of the property — this is not small-potatoes stuff!

Restrictive covenants, then, are (now illegal) binding agreements that hold homeowners (in this instance) to certain behaviors and practices around renting or selling their house.

The term “racial restrictive covenants” encompases agreements, most of which “run with the land,” that prohibit the homeowner from selling or renting to anybody of a specific race or ethnic background. The wording may differ from covenant to covenant, but the crux of the issue is the same: Racial restrictive covenants were designed to create and maintain neighborhood segregation.

As we’ll detail below, racial restrictive covenants were thankfully deemed illegal several decades ago, but the verbiage still remains on many deeds. Thus, this examination is not merely a historical exercise; the effects of racial restrictive covenants perpetuate today.

Take, for example, a 2005 case in Virginia, involving a Black woman who was househunting and who experienced blatant discrimination based on unenforcable deed langauge. The property owner, acting upon faulty knowledge that his neighborhood was “zoned for whites,” told her, “This house is going to be sold to whites only. It’s not for colored.”

Whether or not the deed carried restrictive language, and whether the homeowner had malicious intentions or was confused about the legal terms of his deed, this scenario is obviously not okay. To effectively understand continued racial segregation and discrimination in the housing market, let’s look deeper into the background and fallout of racial restrictive covenants.

Who was restricted from buying homes?

As mentioned, when racial restrictive covenants were written, the language varied widely, but the wording was never vague. Racial minorities were excluded from buying or occupying the covenanted property.

For instance, one developer-originated deed in Minneapolis prohibited owners from selling or renting to anybody of “Chinese, Japanese, Moorish, Turkish, Negro, Mongolian, or African blood or descent.” Another subdivision in Seattle (Clyde Hill) wrote in a shockingly limited “Aryans only” restriction.

What happened if a homeowner broke a racial restrictive covenant?

Just as the covenant language varied, so did the reactions when homeowners rented or sold homes to restricted races or ethnicities — but the long-term consequences essentially never shook out in favor of the unfairly restricted buyers or renters. These legal covenants could and did lead to some sort of legal action against the buyers or renters.

Often, neighbors or an HOA would sue the property owner for failure to comply with the covenant. At that point, local judges held the owner’s fate in their hands, and even if the judge ruled in their favor, the time and expense it took to work these cases through the court system usually meant that the household in question had moved on from the restricted property.

For just one example, consider the case of Clara Mays, a Black woman who purchased a home in February 1944 in a Washington, D.C., area with racial restrictions. Mays’ white neighbor William T. Burgess and several others sued her for breaching the covenant.

Mays was ordered to vacate the property in 1945; her case went through appeals courts, but the Supreme Court declined to hear it, and in October 1945 she was held in contempt of court for failing to vacate when she couldn’t find anywhere else to buy or rent. The case stretched for almost two years — which is faster than most housing-related equal rights cases! — and in the end, Mays lost the court case and her house.

There are, sadly, hundreds more stories like Clara Mays’ story. And when you stop to consider how many Black homeowners were forced out of homes they legally bought but who couldn’t fight the case in court, or who were driven out and didn’t bother filing court cases, then the effects of this widespread loss of wealth and inability to integrate into higher-value neighborhoods becomes much more obvious … and incredibly socially problematic.

What’s the legal history?

According to J.D. and Master of Urban and Regional Planning Nancy H. Welsh, racially restrictive covenants can be traced back to the end of the 19th century in California and Massachusetts. Over a short period of time, the inclusion of such restrictions within real estate deeds grew in popular practice.

The turn of the 20th century brought The Great Migration, and with it an effort on the part of the Supreme Court to outlaw racially based housing ordinances at a federal level. In the case of Buchanan v. Warley (1917), the Court ruled that a 1914 racially restrictive city ordinance in Kentucky violated freedom-of-contract rights found in the Fourteenth Amendment, which was designed to eliminate discrimination.

This ruling set a precedent for future ordinances, but it did not apply to private agreements, such as those that construct neighborhood associations. Thus, racial restrictive covenants flourished in private neighborhoods throughout the country.

In fact, a decade later, the Supreme Court actually upheld racial restrictive covenants as constitutional. In the case of Corrigan v. Buckley (1926), the court ruled that the Fourteenth Amendment only applied to actions of the state, not the individual.

Despite having signed a racial restrictive covenant the year before, Irene Corrigan wanted to sell her home to the Curtises, a Black couple. John J. Buckley and other neighbors fought the sale, and the case was eventually brought to the Supreme Court, which ruled that private covenants were enforceable. The Corrigan-Curtis sale was blocked, and real estate equality suffered a major blow.

A few years later, in response to the Great Depression of the 1930s, the New Deal was enacted, supposedly to stimulate the housing market with government-backed mortgages. However, the New Deal also ushered in an era of redlining, a practice that goes hand-in-hand with racial restrictive covenants. In short, it involves providing different services to people in different neighborhoods based on the racial or ethnic makeup of those neighborhoods.

The FHA’s 1935 underwriting manual actually states, “If a neighborhood is to retain stability it is necessary that properties shall continue to be occupied by the same social and racial classes. A change in social or racial occupancy generally leads to instability and a reduction in value.”

With redlining in full effect at a federal level, racial restrictive covenants in the private sector were almost considered “normal” for the first half of the 20th century — until the NAACP challenged them.

In a landmark 1948 ruling, the Supreme Court deemed all racial restrictive covenants unenforceable. In the case of Shelley v. Kraemer (1948), the Court found that bringing racial restrictive covenants to court actually made them a state matter (rather than a private issue), and state matters are governed by the Fourteenth Amendment. Therefore, even if the covenants existed, no court could uphold the terms – doing so would stand in violation of the Constitutional amendment. This was a huge step in the right direction.

But sadly, widespread damage had already been done. Welsh says, “By the time the Supreme Court ruled them to be unenforceable in 1948, it is estimated that more than half of all residential properties built in the intervening decades were constrained by racially restrictive covenants.”

And even with the 1948 ruling, some new deeds were still written with racially restrictive language. It wasn’t until the Fair Housing Act was enacted in 1968 that writing racially restrictive covenants into property deeds was officially made illegal.

What’s the ripple effect today?

Both individuals and communities have felt the aftershocks of racial restrictive covenants. The impact has been realized on both a personal and emotional level as well as on a broader accessibility level.

In regards to the individual, Elise C. Boddie, Associate Professor at Rutgers School of Law, eloquently says:

The ability to choose space and to move unimpeded through and across the local spaces of everyday life are basic components of freedom, social belonging, status, and dignity. Being excluded from space or marginalized within a particular space is stigmatizing and degrading. Racial territoriality demeans the individual by prohibiting the full expression of the self because those who suffer it experience the world as outsiders, barred from full participation in society.

As far as community effects, Mapping Prejudice, an equality-seeking organization in Minnesota, maintains that:

Separate is not equal. In the United States, racial segregation channels the flow of resources. Where you live determines access to community assets. Majority white neighborhoods have more parks and more generous tree cover. Communities of color have more environmental hazards like landfills and highways. They have less access to medical care, which translates into higher rates of infant mortality and premature births. Schools in these neighborhoods usually have fewer experienced teachers and less challenging curriculum.

What can be done today?

Keep in mind that most racial restrictive covenants “run with the land.”

What does that mean? Just because these old covenants are now unenforceable, they never simply disappeared. Many continue to be passed on from owner to owner through property deeds to this day, and though real estate professionals and lawmakers alike have made efforts toward having them removed, bureaucratic red tape and legal expenses often hinder progress.

Some argue that it would be too cost-prohibitive to remove the racist language from every real estate deed in the country today. After all, just in King County, Seattle, there are more than 500 neighborhoods with restrictive covenants — that’s over 20,000 properties in one county alone.

Instead, Richard Rothstein in The Color of Law suggests adding language to deeds rather than removing language from deeds. In that way, the former language stands as a reminder to not let history repeat itself.

As a result, some titles now include an addendum similar to his suggested verbiage:

We, [your name], owners of the property at [your address], acknowledge that this deed includes an unenforceable, unlawful, and morally repugnant clause excluding [races, ethnicities] from this neighborhood. We repudiate this clause and are ashamed for our country that many once considered it acceptable, and state that we welcome with enthusiasm and without reservation neighbors of all races and ethnicities.

However, if you’re a homeowner with a racial restrictive covenant attached to your deed, it might be worth checking into the necessary steps for striking the covenant completely.

For example, in the San Francisco Bay Area, one property owner found that they could remove racial restrictive covenants for as little as $33 and a couple hours’ time.

Racial restrictive covenants and the associated segregation are something all homebuyers should be concerned about. Feel free to reference our resource guide for additional information regarding racism in real estate.

Header Image Source: (Ahmet Sali / Unsplash)