Divided by design: racially restrictive deed clauses remain on the books despite being illegal

A racially restrictive clause in a deed for a property in Innis Arden, a community in Shoreline, Wash., north of Seattle. (University of Washington)
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The Fair Housing Act of 1968 officially ended racial segregation in the housing market.  But race based exclusions still exist, buried in the deeds of an untold number of older homes across the country.  In Cleveland, the extent of these restrictions are unknown.  No comprehensive list or map exists.  In Seattle, scholars at the University of Washington created such a list, and it led to a change in state law.  History professor James Gregory spearheaded the deed restrictions database as part of the Seattle Civil Rights and Labor History Project.

A restrictive covenant is a clause in a real property deed or lease that limits what can be done to the property.  They can govern a home’s exterior paint colors or its landscaping or the type of material that can be used for a fence.  Racially restrictive deeds, Gregory explained, had an uglier intent.  They were meant to ensure white enclaves remained white

“This is language put into the deed that covers a piece of property and bans the use or sale or rental of that property for generations to come, by any of the proscribed groups, usually African Americans,” said Gregory.  “Out in Seattle, also Japanese, Chinese, Filipinos, other people of Asian descent were prohibited from buying or selling or occupying properties.” 

Gregory said deed restrictions were typically inserted into the deeds of new homes or the bylaws of a homeowners association.

“When a realtor or sub-divider is developing a subdivision, he would typically put that language in either the subdivision code or in each property’s deed,” he said.  “It was also possible to retroactively restrict properties but that was more complicated.  Each property owner had to individual file this kind of language in the deed with the county.  So, both kinds exist, but if you’re looking in Cleveland, as in most other cities, you’ll most likely find these in the newer districts -- the areas that were developed, say, after 1922 all the way through the 1940s.”

In 1948, the U.S. Supreme Court ruled against racially restrictive covenants.  In 1968, Congress outlawed them in the Fair Housing Act.  But they remain on the books, hidden in older versions of a home’s deed.  Gregory said they’re hard to find, and even harder to expunge.

“I knew about deed restrictions, I went down to the county recorder’s office to see if I could find them and that turned out to be a very time consuming and complicated process to uncover them because usually they don’t show up in the current reporting of deeds.  You have to go back to the earlier ones to actually find this language.  But with teams of students, we uncovered, now it’s about 450 different deed restrictions covering many different areas of Seattle and the suburban ring around Seattle.”

Gregory said his young students were surprised that the liberal, progressive Seattle they knew had a racist, segregationist past.

“Unlike Cleveland, Seattle has told itself for a generation or more that segregation is something that only happened in the South. Seattle’s naivete about its segregationist past is part of the reason for so much surprise and I think so much benefit from the project we did.”

It got the attention of the Seattle Times in 2005, and its coverage, in turn, got the attention of state lawmakers.  In 2006, Gov. Christine Gregoire signed into law Senate Bill 6169, which makes it easier for neighborhoods governed by home owners associations to strike the racially restr  ictive language from their governing documents.

“We found that in a number of cases that home owners associations still had these restrictive bylaws on their books,” said Gregory.  “And that’s what the legislature focused on. They said, and quite rightly, ‘This is outrageous in this day and age.’”

But the law doesn’t apply to individual property deeds.  That, Gregory said, would be an onerous and costly task for every homeowner. 

“To actually get them out would pretty much have to be done case by case, through filings of new language.  So it’s really a cumbersome move,” he said.  “Many attorneys have looked into, ‘Is there a way the state could remove them all?’ and it hasn’t seemed practical.”

Gregory said other communities have undertaken similar projects to find and map racially restrictive covenants, including in Minneapolis, Minn., Hartford, Conn., and Washington, D.C.  He said there’s a lot to gain by doing so.

“I don’t think there’s any question that this kind of information about our past, about residential patterns, about the forces that structured segregation over time, I think it’s a very current and important issue for our cities,” he said.  “I think Cleveland would really benefit by making restrictive covenants visible.”

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