Do You Have a Racist Deed?

Discriminatory restrictions and covenants

 Debbi Conrad  |    March 15, 2021
Racist Deed

“No Persons other than the white race shall own or occupy any building on said tract, but this covenant shall not prevent occupancy of persons of a race other than the white race who are domestic servants of the owner or occupant of said buildings.” 
-Restriction for Crestview Acres 12, Greendale, recorded July 29, 1958

The first racial restriction in Wauwatosa was placed on the Washington Highlands Subdivision in 1919: “At no time shall the land included in Washington Highlands or any part thereof, or any building thereon be purchased, owned, leased or occupied by any person other than of white race. This prohibition is not intended to include domestic servants while employed by the owner or occupied by and [sic] land included in the tract.” (Vol. 803, Page 205). The deeds for these properties stated these restrictions would run with the land until January 1, 1950, with automatic renewal for 20-year terms unless five years prior to a term’s expiration the owners of 60% of the acreage executed an agreement releasing the land.

These racial covenants appear in deeds and subdivision restrictions and covenants in Wisconsin. Although they are illegal, they haunt the title records and title commitment reports received by buyers looking to purchase these properties. The language of the past prohibiting people of certain races from living in properties is no longer enforceable, but it still shocks potential buyers. 

Systemic racism and segregation

Throughout the United States in the 1900s, local government, real estate developers, local real estate brokers and boards, financial institutions and title companies joined forces to keep black families out of residential areas through the use of racially restrictive covenants and restrictions. At first there were local ordinances establishing racial restrictions in different neighborhoods and communities. In 1917, however, the U.S. Supreme Court ruled in Buchanan v. Warley that ordinances establishing racial restrictions violated the Fourteenth Amendment. Racially restrictive covenants consequently superseded ordinances as the preferred mechanism for establishing residential segregation. 

For nearly 50 years, developers wrote racially restrictive covenants into the title of millions of new homes. The easiest way to impose race restrictions on large areas was before the parcels were sold and developed. Some developers included restrictions in the plat maps or the associated covenants and restrictions, while others affixed deed restrictions as they sold off lots and parcels.

In 1926, the Supreme Court affirmed the legality of this practice. The ruling in Corrigan v. Buckley stated that while states are barred from creating race-based exclusionary laws and ordinances, private deeds and developer plat maps are not similarly affected by the Fourteenth Amendment. Individuals enter into covenant agreements voluntarily, whereas ordinances are imposed by state and municipal government.  

These covenants ran with the land, and anyone who dared to breach a covenant — even decades after it was put into place and even after the property had changed hands multiple times — risked ending up in court. A property owner who sold land subject to this kind of covenant to a person who was not white risked losing the property and their accumulated equity. A violation could trigger a process that would put the property back in the hands of the person who instituted the covenant in the first place. The Wisconsin Supreme Court held in 1942 in Doherty v. Rice that a black man was prohibited from building a cabin with a value of less than $600 on a Wisconsin lake, although whites could do so under the racially restrictive covenants governing this lakefront property. 

Nonjudicial enforcement

Then in 1948, following activism from black Americans, the U.S. Supreme Court unanimously ruled racially restrictive covenants were unenforceable. In Shelley v. Kraemer, the court held judicial enforcement of racially restrictive covenants was unconstitutional. Nonetheless, developers continued to record such covenants in Milwaukee County and throughout the country and influence where minority individuals were able to reside.

The Federal Housing Administration (FHA), established in 1934, refused to underwrite mortgages for homes unless a racial covenant was in place. The FHA claimed if African-Americans bought homes in or near white suburbs, the property values of the white homes they were insuring would decline and put their loans at risk. This led to the color-coded redlining maps. 

REALTORS® also encouraged racial segregation in order to maintain property values and sell housing. Beginning in 1924, the REALTOR® Code of Ethics provided, “a REALTOR® should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individuals whose presence will clearly be detrimental to property values in that neighborhood.” 

Social enforcement was also a factor. There were threats from neighborhood associations, churches and other groups that promised to make life uncomfortable for those who integrated a neighborhood contrary to the covenants. A violator might have 
his real estate broker blacklisted or experience difficulty obtaining sewer, water, roadway access and other services. Sometimes the driveway was blocked off, the children were roughed up, or the property was damaged or littered up.  

Banned by federal law 

Twenty years after the U.S. Supreme Court ruling in Shelley v. Kraemer, the Fair Housing Act of 1968 was passed and outlawed these covenants altogether. The Fair Housing Act prohibits discrimination in the sale, rental and financing of dwellings and other housing-related transactions, based on race, color, national origin, religion, sex, familial status and disability. The act officially made the use of racially restrictive covenants in housing illegal and prohibited restrictive covenants from being upheld both privately and judicially.  

However, this ruling did not erase racial restrictions from property deeds and title records. As a result, the language of segregation remains in the fine print of deeds and restrictive covenants today. 

Other protected classes

Black Americans were almost always excluded by these racial covenants. In many places, people of other ethnicities were barred as well. In Seattle, Washington, for example, some deeds state that homes shall not be lived in by any “Hebrew or by any person of the Ethiopian, Malay or any Asiatic Race.”

The patchwork of segregation

“Pretty much every community in the country is going to have racial covenants,” said historian Kirsten Delegard, a founder of the Minneapolis-based Mapping Prejudice project, which researches the covenants that barred nonwhites from buying property in the city’s most desirable neighborhoods. This project reveals the geography of segregation when the properties subject to racial restrictions and covenants are viewed on the map of a community. The visual portrayal confirms the covenants were used to keep minorities out of neighborhoods perceived to be more desirable.

Scrubbing away the racist stains

Whether racial covenants should be removed is subject to debate. Some experts warn that hiding the mistakes of the past could stymie efforts to somehow make amends and help the black and brown communities that continue to feel the economic consequences of having been denied access to property ladders and generational wealth. 

Delegard from the Mapping Prejudice project asserts, “We need to know where these restrictions were put in place if we’re ever going to dismantle the system of racism in a logical, consistent way.” But others, including those whose ancestors were targeted by racial covenants, say it’s time for the loathsome language to disappear. 

Those who advocate for the banishment of the language provide an apt analogy. “It is akin to leaving up in the South, where you had Jim Crow laws, keeping up the ‘no coloreds’ or the ‘white only’ signs at water fountains, bathrooms, other facilities and saying, ‘Oh, just ignore the sign. You can drink out of either one. Just ignore it,’” said Hector De La Torre, a former state lawmaker in California. “That’s what this is.”

De La Torre’s family moved from Mexico to California in the 1960s, and he lives in a house that still has a racial covenant clause on title that at one time would have barred him from living there unless he was a servant. “So, perfectly fine for us to be servants and ‘kept’ in these houses. But could not own it, ... could not live in it.”

In some places, official records can now be amended to account for racial covenants. For example, in Washington, Minnesota and California, homeowners can ask county clerks to record or attach a modification document to deeds and other recorded documents stating that any offensive discriminatory covenant therein is illegal and that the discriminatory restriction is legally discharged and released. And real estate professionals in California who deliver deeds and other documents containing racist covenants to clients and customers must include a cover sheet that states, in 14-point, boldface type, that a modification can be filed. 

As far as a complete removal of the objectionable language from the recorded property records, rather than a virtual removal or a strikethrough, it is unclear how that might be done.  

No mechanism has yet been found to permanently remove the painful, appalling language that reminds us of our racist history.

Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.


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