Q) Recently, when we refinanced the mortgage on our house, we were given a copy of the original deed to our lot, executed in 1945. To our surprise, it contained the following restrictive covenant: "No part of said land shall be sold, or titled thereto, transferred, or possession had by any person or persons not of Caucasian blood."
We understand that covenants like this are not enforceable, but we find it offensive that this vestige of racism persists in the official documents related to our home. Is there a relatively uncomplicated way to go about ridding ourselves of this covenant?
A) Former president Richard Nixon and Chief Justice William Rehnquist also wished that they had taken steps to deal with the restrictive covenants they found on their properties. Many years ago, when Nixon was running for president, someone discovered a similar racially restrictive covenant on a home he owned in the Washington area.
And quite recently, when Congress was considering the nomination of Rehnquist to be chief justice, it was learned that he had a restrictive covenant on property he owned in New England.
For years, developers of property would place restrictions -- called restrictive covenants -- on the land records that "ran with the land." This meant that a subsequent buyer was put on notice of the existence of the covenant, and if he did not like the covenant he did not buy the property. These covenants contained restrictions against many acts. Some were legitimate and needed, such as a prohibition against the raising of sheep and cattle or the selling of liquor.
Others were morally objectionable, such as the one you found on your property.
In 1948, the Supreme Court, in the famous case of Shelley v. Kraemer, ruled that although the covenants did not violate the 14th Amendment, it would be a violation of the equal protection clause of the Constitution for state courts to enforce them.
In effect, the Supreme Court said that since these covenants were between individuals, the Constitution did not prohibit them, but no person could use the federal or state courts to enforce the covenants, since this would violate constitutional law.
This was a great victory in 1948. But many people, such as you, found that the existence of the covenants violated their concept of decency.
In 1972, in Mayers v. Ridley, the U.S. Court of Appeals here held that the Fair Housing Act of 1968, which makes it unlawful to print or publish any notice or statement with respect to the sales or rental of a dwelling that indicates any preference based on race, prohibited the recorder of deeds for the District of Columbia from accepting or filing documents that contain racially restrictive covenants.
In effect, the court told the recorder of deeds that no more racially restrictive covenants could be recorded on the land records in the District.
However, many people find, when they do the history of their house, that these racial covenants remain on the books. They are not enforceable, and indeed are a vestige of the past. Mayers v. Ridley pointed out that a number of racial covenants that have found their way in the past into the land records throughout the United States. One such covenant read as follows:
"No part of the land hereby conveyed shall ever be used, or occupied, by, sold, demised, transfered, conveyed unto, or in trust for, leased or rented, or given, to Negroes, or any person or persons of Negro blood or extraction, or to any person of the Semitic race, blood or origin, which racial description shall be deemed to include Armenian, Jews, Hebrews, Persians and Syrians, except that: this paragraph shall not be held to exclude partial occupancy of the premises by domestic servants."
In fact, slaves could occupy the property without being in violation of the covenants.
The courts have made it very clear that while these racially restrictive covenants do not, per se, violate the Constitution, they can no longer be recorded among the land records or enforced by local, state or federal authority.
But you still find these archaic covenants on the land records. I would recommend that you file a declaration specifically disavowing and disclaiming the covenant. This declaration should be properly drafted, signed and notarized, so that it may be recorded among the land records where your property is.
In some instances, if, for example, you are in a subdivision, it may be possible for all the owners to eliminate the covenant.
The general law on restrictive covenants is that if all parties with an interest in the property agree that a covenant is no longer valid, they may file a document stating that on the land records. However, often it is difficult to find all the parties, and thus I recommend that you file a declaration on the land records stating your intention to disavow the covenants. Benny L. Kass is a Washington attorney. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.