It’s past time to strike racially restrictive covenants from deeds

Although no longer enforceable, restrictive covenants were common in the first half of the 20th Century. Such agreements sometimes barred people from specific races, national origins, ethnic backgrounds, and even certain religions from legally purchasing or occupying properties.

When the Supreme Court ruled such covenants to be unenforceable in a 1948 decision (Shelley v. Kraemer) it was estimated that more than half of all residential housing built in the country carried deeds with racially restrictive covenants.

A report in the September/October edition Common Ground, a publication of Community Associations Institute (CAI), stated some covenants generally barred “non-Caucasian” groups, while others would specify certain races, nationalities, or individuals with disabilities.

In 1968, with the passage of the federal Fair Housing Act, writing racially restrictive covenants into deeds became illegal. That law also made it illegal to refuse to sell or rent a home to any person who was included in a protected class.

A Washington state law passed in 1968 rendered such covenants void. That law (RCW 49.60.224) says it is an unfair practice to attempt to honor a racially restrictive covenant in the chain of title. Nevertheless, Segregated Seattle, part of the Seattle Civil Rights & Labor History Project at the University of Washington, has collected 70 segregation maps and nearly 500 restrictive covenants from deeds on file in the King County archives.

Property owners in Washington were granted a way to strike racially restrictive covenants from documents affecting the title of their properties, thanks to a 2018 amendment to state laws against discrimination. Owners of properties with a racially restrictive covenant can now record a modification document with the county where the property is located.

The modification document should refer to the recorded document containing the racially restrictive covenant and insert the following statement required by law:

The referenced original written instrument contains discriminatory provisions that are void and unenforceable under state law and federal law. This document strikes from the referenced original instrument all provisions that are void and unenforceable under law.

In other states, if laws have not been passed for modifying documents, CAI supports the following model language:

A restriction, covenant, or condition, that prohibits or limits the conveyance, encumbrance, rental, occupancy, or use of real property on the basis of race, color, national origin, religion, sex, familial status, or prohibits maintaining a trained guide dog or assistance animal because the individual is blind, deaf or has a physical disability, is void and has no legal effect, except a limitation of use for religious purposes as permitted under the Federal Fair Housing Act or state law.

Recording a modification document will not delete the historic record, but it provides notice in the land title records that the racially restrictive covenant is void and unenforceable. It legally strikes (but doesn’t physically erase) the void and illegal discriminatory provisions for the original document.

In King County, the Recorder’s Office has step-by-step instructions for preparing and recording a “Restrictive Covenant Modification Document” and online forms for both individuals and non-individuals. There is no charge to record the document, but there may be a fee to have the form notarized.