Arizona Legal Studies
Discussion Paper No. 13-21
Property Law and the Rise, Life, and Demise of
Racially Restrictive Covenants
Carol M. Rose
The University of Arizona
James E. Rogers College of Law
March 2013
Electronic copy available at: http://ssrn.com/abstract=2243028
PROPERTY LAW AND THE RISE, LIFE, AND DEMISE OF RACIALLY RESTRICTIVE COVENANTS.
6th Annual Wolf Family Lecture on the American Law of Real Property
University of Florida Levin College of Law
Carol M. Rose
March 13, 2013
1. Introduction
Racially restrictive covenants have left a mark in our law books. One can still read their
language in older cases: such-and-such property may be sold or occupied by “Caucasians only.”
Or, this-and-that property may not be sold to any one of “African” or occasionally “Asiatic” or
“Mexican” or even “Semitic” or “Assyrian” origin. 1 The most common form of racial covenant
was designed to keep African Americans out of white neighborhoods, and in a somewhat
distant second, particularly in California's cities, to exclude persons of Asian origin.
These racial restrictions on private property are now largely a thing of the past in the
United States. For most people who know anything about that past, their legal history was a
matter of Constitutional law. In the celebrated but controversial case of Shelley v. Kraemer in
1948,2 the United States Supreme Court treated judicial enforcement of these restrictions as
“state action” denying equal protection of the laws under the Fourteenth Amendment to the
Constitution, and thus these racial restrictions became unenforceable in the courts. Twenty
years later, the United States Congress, basing its action on the Commerce Clause as well as the
1
Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social
Norms 1-3, note 4 at 233 (2013), and sources cited therein. Much of the present article is distilled from research
for this book.
2
334 U.S.1 (1948).
1
Electronic copy available at: http://ssrn.com/abstract=2243028
Fourteenth Amendment, followed with the Fair Housing Act, which made it flatly illegal (with a
few minor exceptions) to refer to racial restrictions in the sale or rental of real estate.3
Although lawyers may generally associate racially restrictive covenants with
Constitutional history and with Shelley in particular, property law was a major part of that
history as well. Indeed, one might see the rise and demise of racially restrictive covenants as a
kind of dialog between property law and Constitutional law over a period of several decades.
Moreover, because traces of these restrictions still exist in the records, the dialog is not yet
entirely over.
2. Before Covenants Emerged: Race Nuisance and Racial Zoning
Racially restrictive covenants appeared occasionally in real estate transactions before
1900, but they began to become more prevalent after the turn of the century, and they became
very widespread indeed after about 1920. Racial covenants on residential property
accompanied two intertwined social phenomena of the early twentieth century. One was the
demographic upheaval that came to be known as the Great Migration, as African Americans—
hitherto living for the most part in the rural Southeast—departed for cities in the upper south,
midwest, and north, in an effort to improve their economic and political status.4
The second and closely related phenomenon was the more general urbanization of
America beginning in the later nineteenth and early twentieth centuries. As some well-known
European social writers of the era rather anxiously observed, people living in urban areas were
3
42 U.S.C. secs 3601-3619, sec. 3604.
Brooks & Rose, Saving the Neighborhood, supra note ---, ch. 2 and sources cited therein. A recent brief history of
the Great Migration is in Ira Berlin, The Making of African America: The Four Great Migrations (2010), particularly
Chap. 4, The Passage to the North, at 152-200 and sources cited therein, at 272-281.
4
2
Electronic copy available at: http://ssrn.com/abstract=2243028
less tied to family and community than they would be in rural villages. No surprise, then, that
African Americans who moved to towns might not accept a thoroughly servile status vis-à-vis
white urbanites, and instead might become more “uppity” than they had dared to be in the
repressive southern countryside, where they and their families were well-known and easy
targets for intimidation. But for white Americans, any such change in black attitudes could pose
an uncomfortable threat to their previously unchallenged social superiority. 5
Urban white Americans were less likely to enforce their claims to superior rank through
the kind of overt violence that had marked the southern countryside ever since Reconstruction,
but for white urbanites, a fallback position was to segregate themselves from African
Americans, and to use legal means for this purpose. Around the turn of the nineteenth to the
twentieth century, southern jurisdictions turned to the notorious “Jim Crow” legislation that
separated whites from blacks through a great range of spaces and activities—first
transportation facilities, followed by parks, schools, hospitals, restaurants, hotels, and on and
on.6 Northern jurisdictions avoided this kind of legal segregation for most purposes, but legal
separation of residential areas had an appeal for urban whites far beyond the old South—
particularly as poorer and more rural southern black migrants began to pour into northern
cities.
How could residential segregation to be achieved and enforced legally? Early in the
twentieth century, there seemed to be several options, but they gradually narrowed down to
5
Brooks & Rose, Saving the Neighborhood, supra note -- , at 24-26. An author who particularly stresses
urbanization is Error! Main Document Only.Howard N. Rabinowitz; see, e.g., his Race, Ethnicity, and Urbanization
209-211 (1994).
6
The leading case to permit segregation was Plessy v. Ferguson, 163 U.S. 537 (1896). Jim Crow legislation has
been described at length by many scholars. See, e.g. Jack Temple Kirby, Darkness at the Dawning: Race and
Reform in the Progressive South 23-25 (1972); cf. Howard Rabinowitz, From Exclusion to Segregation: Southern
Race Relations 1865-1890, 63 J. Am. Hist. 325 (1976) (disputing origins and implications of segregation measures).
3
one: racially restrictive covenants through property law. Other legal routes were tried first,
however. A few white homeowners attempted to class African American neighbors as
nuisances. This was an effort that had little success. The most famous case was Falloon v.
Shilling (1883), in which one white homeowner, after a dispute with a neighbor, charged that
the neighbor was attempting to create a nuisance by renting to “worthless negroes.”7 The
Supreme Court of Kansas roundly rejected this claim, and the great treatise writers of the day
agreed, stating that no persons could be a nuisance simply because of who they were, as
opposed to the actions they took.8 Even southern courts rejected the idea of a flat “race
nuisance” per se, although some cases hinted that claims of nuisance for noise, congestion and
other more conventional factors might seem more convincing if the perpetrators were African
Americans.9
Nuisance, however, had never been all that viable a vehicle for residential segregation.
Nuisance law was (and still is) notoriously case-by-case and post hoc, and besides, nuisance
claims created collective action problems, insofar as one or a few of several white neighbors
would have to go to the trouble of bringing a lawsuit against the intruding and supposedly
offensive minority neighbor. For residential segregation, a more promising route seemed to be
zoning, where enforcement would presumably be undertaken and funded by public officials
rather than individual white residents.10
7
29 Kan. 292 (1883).
See, e.g. Joseph A. Joyce & Howard C. Joyce, Treatise on the Law Governing Nuisances, at 49, n. 22 (1906) (citing
Falloon for the proposition that it was not a nuisance for a neighbor to introduce “a different class of people
socially” onto his property).
9
See Rachel D. Godsil, Race Nuisance: The Politics of Law in the Jim Crow Era, 105 Mich. L. Rev. 505, 516-25 (2006)
(mere presence of racial minority not a nuisance, but some race and conduct nuisance claims succeeded).
10
For racial zoning’s externalization of costs onto the public, see David E. Bernstein, Philip Sober Controlling Philip
Drunk: Buchanan v. Warley in Historical Perspective, 54 Vand. L. Rev. 797, 803, 859 (1998).
8
4
Zoning itself, as a general matter, was part of a progressive program for city planning in
the early twentieth century, representing the hope that cities could be more rationally designed
if conflicting uses were separated. Racial separation seemed to fill the bill, according to the
proponents or racial zoning; they argued that racial zoning—like the separation of incompatible
land uses--would prevent conflict and enhance property values. Indeed, when Baltimore
passed a racial zoning ordinance in 1910, it preceded by several years New York City’s
pioneering comprehensive zoning ordinance of 1916. Baltimore itself revised its racial zoning
ordinance several times when the courts raised problems, but it was not long before other
cities passed similar racial zoning ordinances.11
One of those cities was Louisville, Kentucky, whose 1914 ordinance mimicked the
original Baltimore ordinance. Louisville's racial zoning ordinance prevented anyone from
moving into a block where the majority of residents were members of another race, evidently
in the expectation that over time, majority-white blocks would become all white and majorityblack blocks all black. But the recently-founded National Association for the Advancement of
Colored People backed a lawsuit against the ordinance, and to the great consternation of the
ordinance's backers, the U.S. Supreme Court invalidated racial zoning in Buchanan v. Warley in
1917, as a violation of the Fourteenth Amendment.12 The Buchanan decision was surprising
insofar as the Court had backed the segregation of railway cars in the relatively recent past, in
11
See Stephen Grant Meyer, As Long as They Don’t Move Next Door: Segregation and Racial Conflict in American
Neighborhoods 16-22 (2000) (describing politics of Baltimore racial zoning ordinance, similar ordinances in other
cities); see generally Garrett Power, Apartheid Baltimore Style: The Residential Segregation Ordinances of 19101913, 42 Md L. Rev. 289 (1983) (same).
12
245 U.S. 60 (1917). For the NAACP’s role, particularly in developing a test case, see Susan D. Carle, Race, Class
and Legal Ethics in the Early NAACP (1910-20), 20 L. & Hist. Rev. 97, 124-28 (2002) (describing NAACP strategy).
5
the notorious Plessy v. Ferguson case13—a decision that acted as the legal bulwark for Jim Crow
legislation in so many other dimensions. But the Court reached a different conclusion with
respect to the disposition of private property. Seemingly relying mainly on the Fourteenth
Amendment’s Due Process clause, the Justices brushed aside proponents' arguments that racial
separation would enhance property values and public order (and incidentally prevent
miscegenation).14 The Court instead ruled that Louisville’s ordinance was simply too great a
public intrusion on the rights of property owners.
3. The Turn to Covenants in Real Estate Transactions
After nuisance claims fizzled out, and after Buchanan torpedoed racial zoning, what was
left for enforceable legal claims for neighborhood segregation was the racially restrictive
covenant. Residential covenants—promises “running with the land”-- seemed to be simply a
matter of private property, not subject to Constitutional claims under the Fourteenth
Amendment. By the time of the Buchanan case, restrictive covenants of all kinds were
becoming more prevalent in new residential developments, but in earlier years there had been
some doubts about them—and not just about racial covenants, either. Some of the doubts
came not from Constitutional law but from property law.
Putting racial restrictions to one side for a moment, some other kinds of restrictive
covenants had been used occasionally in residential areas before the later years of the
nineteeth century. But it was the advent of planned private real estate development in the
early twentieth century that made restrictive covenants particularly important in residential
13
14
163 U.S. 537 (1896)
For Louisville’s arguments in favor of the ordinance, see Bernstein, supra note ---, at 844-45.
6
areas.15 At the same time that proponents of the “city beautiful” argued for zoning, high-end
real estate developers were beginning to put together relatively sizeable developments,
grading, landscaping, and installing water and sewer lines and other infrastructure prior to
selling off individual plots for the owner’s own construction. It was critically important for
these developers to control the kinds of structures and uses that buyers created for these lots.
Unless the developers could control the lot purchasers' actions, their lovely plans—and their
remaining lot sales--might go badly awry when some owner built a cheap or garish home, or
started a chicken farm on the premises. For this reason, developers like Baltimore’s Edward H.
Bouton or Kansas City’s J. C. Nichols, two of the pioneers of the new “high class” communitybuilding enterprises, increasingly turned to deed restrictions -- restrictive arrangements that
would, in the classic phrase, “run with the land.”16
For these developers, however, the turn to covenants or deed restrictions was not
worry-free. Later nineteenth century courts often upheld such restrictions, but not without a
number of ominous warnings. Deed restrictions and other covenants that ran with the land
could be classed as a kind of limitation on the alienability of property, and as many courts
remarked, limitations on free alienability and use were disfavored in the law, and any doubts
were to be resolved against restrictions.17 Most states, after all, had banned the entailed fee—
a limitation on the transfer of landed property out of a particular family line—as a vestige of an
aristocratic hegemony supposedly incompatible with American values. By the same token, as
15
For an extensive discussion of the role of restrictive covenants in early twentieth century planned developments,
see Robert M. Fogelson, Bourgeois Nightmares: Suburbia, 1870-1930 (2005); see also Marc A. Weiss, The Rise of
the Community Builders: The American Real Estate Industry and Urban Land Planning 45-46, 69-72 (1987) (value
of restrictive covenants for early developers) [hereinafter Weiss, Community Builders]
16
Fogelson, Bourgeois Nightmares, supra note ---, at 63-77.
17
See, e.g. Hutchinson v. Ulrich, 34 N.E. 556 (Ill. 1893) (construing an ambiguous “single dwelling” condition in
favor of apartment builder).
7
the Kentucky Supreme Court asserted in a challenge to a residential-use-only restriction,
limitations on free alienability or use “are looked upon with disfavor by the courts, and are
rather strictly construed, inasmuch as they detract from the freest use of the fee simple, and
are annoying to owners and intending purchasers.” 18 But having said all that, the court
followed an emerging judicial trend that favored restrictions deemed reasonable and useful,
and that upheld private land use restrictions in spite of cautionary statements against them.19
As the new century turned ten, and then twenty, high-end developers gradually became bolder
about using restrictive covenants to lend their new communities an aura of attractiveness,
stability, and prestige.
Given the prejudices of the era, adding a covenant to ensure racial exclusiveness was
considered a desirable feature in many of these newly developing well-to-do communities. But
racial covenants carried an extra cause for concern for the new “community builders,” this time
coming from a lingering doubt about the status of racial covenants in Constitutional law. In
Gandolfo v. Hartman,20 a 1892 case concerning a covenant against residency by “Chinamen,” a
lower Federal court in San Francisco invalidated the covenant, using two rationales. One was
the treaty between the United States and China, requiring equal treatment for Chinese citizens;
but the other was the Fourteenth Amendment, prohibiting any state from denying its denizens
“equal protection of the laws.” The judge casually dropped the remark that if a state or
municipality could not discriminate on a racial basis, it would be a “very narrow construction”
of the equal protection clause to hold that a private citizen could do so by a judicially18
Highland Realty Co. v. Groves, 113 S.W. 420, 421 (Ky. 1908).
An important case in setting this trend was Cowell v. Colo. Springs Co., 100 U.S. 55 (1879) (upholding liquor
prohibition)
20
49 F. 181, 182 (Cir. Ct., S.D. Cal. 1892)
19
8
enforceable contract. While the Gandolfo case was out of step with the developing
jurisprudential ideas that distinguished “state action” from “private action” in Fourteenth
Amendment interpretation, nervousness about the case may have been the reason why, a few
years after Gandolfo, the legal advice to Baltimore developer Bouton was to steer clear of racial
covenants in his new Roland Park subdivision. 21 Presumably if a racial restriction were to be
thrown out, it might taint the entire scheme of deed restrictions.
The special constitutional concerns about racial covenants gradually receded over the
first two decades of the twentieth century, however. Racial covenants became especially
prevalent after the Buchanan case took racial zoning off the table; after that case, racial
covenants seemed to be the only practicable route to prevent willing white owners from selling
to willing minority buyers over long periods of time. Even before the Buchanan case, the
Louisiana Supreme Court upheld a racial covenant in the 1915 case Queensborough Land Co. v.
Cazeaux,22 without so much as mentioning Gandolfo. Within a few years, some other courts
would make a nod in the direction of the Gandolfo case, but only to dismiss it as a decision
based on the treaty with China, or as simply a decision that was mistaken about the appropriate
interpretation of the Fourteenth Amendment.23 According to these later cases, governmental
regulation like zoning counted as “state action” under that Amendment, but racially restrictive
covenants were merely private action, not subject to the Amendment at all. To get ahead of
our story slightly, the state action/private action distinction was ostensibly upheld in 1926 by
21
Fogelson, Bourgeois Nightmares, supra note ---, at 62. In the later stages of Bouton’s Roland Park subdivision,
racial covenants were added.
22
67 So. 64 (La. 1915)
23
See, e.g., Title Guarantee & Trust Co. v. Garrett, 183 P. 470, 471 (Cal. App. 1919) (upholding racial covenant with
no mention of Gandolfo); Parmalee v. Morris, 188 N.W. 330, 331 (MI 1922) (distinguishing Gandolfo); Kraemer v.
Shelley, 198 S.W. 679, 683 (Mo. 1946) (asserting that Gandolfo was not valid)
9
the Supreme Court itself in Corrigan v. Buckley; here the Court dismissed a case against a racial
covenant in a neighborhood in Washington, D.C., saying that as a matter of merely private
“contracts,” racial covenants failed to present a substantial federal question for the Court's
jurisdiction.24 As some elated real estate professionals crowed after the case, racially restrictive
covenants were “'constitution-proof.”25 And so it seemed at the time; no one could have
predicted that Shelley v. Kraemer would reverse this designation just over twenty years later.
But Constitutional constraints had by no means been the only nagging questions for
racially restrictive covenants. They had some other legal obstacles, coming largely from
property law, and those obstacles were not trivial.
4. Early Racial Covenants: Property Law Concerns and Developers’ Responses
It bears mentioning that for real estate professional professionals by 1920, it seemed
imperative to overcome all kinds of legal impediments to racially restrictive covenants, whether
from Constitutional or property law sources. Race riots had burst out in cities here and there
over the first two decades of the twentieth century—Atlanta, East St. Louis, and Springfield,
Illinois, to name just a few of the larger ones. Then, two years after the Buchanan case had
removed racial zoning as an option for residential segregation, a horrific race riot broke out in
Chicago, lasting the better part of a week and causing thirty-eight deaths and untold property
damage.26
24
271 U.S. 323 (1926)
Thomas Lee Philpott, The Slum and the Ghetto: Neighborhood Deterioration and Middle-Class Reform 192
(1978) (hereinafter Philpott, The Slum and the Ghetto).
26
See Thomas Lee Philpott, The Slum and the Ghetto: Neighborhood Deterioration and Middle-Class Reform,
Chicago 1880-1930, at 170-77 (1978) (describing riot damage, death figures).
25
10
The race riots must have convinced many that the races could not live together in
tranquility in American cities. In particular, the riots must have also convinced many in the legal
community that ways had to be found to bolster the last stand of legally enforceable residential
racial segregation –that is racially restrictive covenants. Putting Louisiana’s pre-Buchanan
Queensboro Land case to one side, the major state court cases upholding racially restrictive
covenants began to appear shortly after the Chicago riots. 27
When faced with fourteenth amendment arguments by the NAACP and its allies, the
state courts had little difficulty separating the “state action” in zoning from the “merely
private” action in entailed by racially restrictive covenants. But what was more formidable was
the general property law disfavor toward what were called “restraints on alienation.” As noted
above, covenants and deed restrictions of all kinds had to overcome what appeared to be a
general judicial disfavor to the free use and alienability of property. Indeed, any condition that
runs with the property can count as a restraint on alienation, because the condition will cut at
least some bidders out of the pool— for example, someone who wants to build a gas station is
not likely to bid on a property that is restricted to residential use. On the other hand, the early
twentieth century disfavor to restraints on alienation was and rather ambiguous, because some
restraints were allowable so long as they were “reasonable.” What then would make an
alienability restraint “reasonable”? The usual boilerplate was that a restraint was reasonable if
it were not of a type that excluded too great a pool of purchasers over time. Modern law and
economics analysis suggests another way to understand the limitation: restraints could restrict
27
Much-cited early state supreme court cases upholding racially restrictive covenants were Los Angeles
Investment Co. v. Gary, 186 P.2d 596 (Cal. 1919); Parmalee v. Morris, 188 N.W. 330 (Mich. 1922); Koehler v.
Rowland, 205 S.W. 217 (Mo. 1918).
11
the bidding pool in some respects, but the pool might actually be increased if the restriction
appealed to some other substantial group of bidders. Thus a restriction limiting use to
residences might keep out the gas station operator, but it might be offset by greater appeal for
buyers who wished to enjoy the peace and quiet of an all-residential neighborhood. Similarly,
height restrictions, setback requirements, building style limitations, parking restrictions and so
forth might actually enhance the appeal of the newly planned communities of the 1910s and
1920s, and thus such restraints could seem to be “reasonable.”28
But what about race? Racial limitations undoubtedly had considerable appeal to the
well-to-do white buyers in newly developing communities of the early twentieth century. But
could they count as reasonable? Some state courts thought that they could, apparently on the
easy assumption that racial restrictions would enhance property values, and analogizing
them—in a way that is quite shocking to modern readers--to restrictions on factories, gas
stations or liquor establishments.29 Other courts were more ambivalent, especially those in
California. As one of California's appellate courts colorfully put it, a racial restriction on sales
could limit those sales to very narrow personal categories, ultimately excluding conveyance “to
any but albinos from the heart of Africa, or blond Eskimos”—too much a restraint on alienation
to pass muster in California law.30
But the court immediately undercut this refreshing conclusion with the statement that
while covenants that restricted sales on a racial basis would be an impermissible restraint on
alienation, racial covenants restricting use and occupancy would be acceptable, since use and
28
Highland Realty Co., supra note ---.
Kohler v. Rowland, at 220 (comparing racial restriction to restrictions on factories, liquor establishments and
other uses).
30
Title Guarantee & Trust Co. v. Garrott, 183 P. 470, 473 (Cal. App. 1919).
29
12
occupancy did not count as alienations of the property.31 The California Supreme Court made
this same bifurcation, albeit with less lurid language. 32 What this meant in effect was that an
African American purchaser could buy a house with a racial covenant in California—but he or
she could not then live in the house. This formalism was actually ratified in 1929, when a
California court ruled that the minority purchasers of a house could own it, but they could not
live in it.33
California was not the only state to make this formal distinction; Michigan did so as well,
in another important state supreme court case of the 1920s.34 While a few contemporary
commentators criticized the artificiality of the distinction, observing that most people who
bought houses intended to live in them, the distinction did affect the way a number of racially
restrictive covenants were written. Some covenants avoided any limitations on selling
property, concentrating solely on “use and occupancy,” while many others added “use and
occupancy” to sale restrictions.35 After all, racial restraints on use and occupancy were a
convenient way to keep out minority tenants as well as owners. The use/occupancy distinction
was to appear again in an interesting case in Cleveland in the 1940s, in which a church bought a
residence and wanted to install the African-American minister. The church, as a corporation,
had no race, but the Ohio court ruled that the minister did, and the covenant against African
American use and occupancy prohibited his residence in the building. It did not matter that he
31
Id., at 474-475.
Los Angeles Investment Co v. Gary, 186 P. 596 (Cal. 1919)
33
Stratton v. Cornelius, 277 P. 893 (Cal. App. 1929).
34
Porter v. Barrett, 206 N.W. 532 (Mich. 1925).
35
For a covenant solely against use and occupancy, see Stratton, supra. For a covenant prohibiting both sales and
occupancy, see, e.g. Mays v. Burgess, 147 F.2d 869 (1945), certiorari denied 325 U.S. 868. For a critic of the
sale/occupancy distinction, see Arthur T. Martin, “Segregation of Residences of Negroes,” 32 Mich. L. Rev. 721,
737 (1934).
32
13
was a “servant” of the corporation—like many racial covenants, there was an exception
allowing black servants' residence in the building—because the court ruled that the covenant's
exception for minority servants obviously had other purposes.36
Doctrines about restraints on alienation were those that were most prominently
discussed in property-law challenges to racial covenants. But other property law doctrines also
appeared to influence the ways that racially restrictive covenants were written. Roughly
speaking, these unspoken shadow doctrines were aimed at three factors: reasonable duration,
adequate notice, and continuing value. That is to say, these covenant doctrines, though largely
not mentioned in the major cases, nevertheless had an impact on the form in which developers
and others drafted racial covenants.
The shadow doctrine most prominently associated with duration was the venerable Rule
Against Perpetuities (RAP). Rather than take the reader through the multiple permutations of
this much-dreaded Rule, suffice to say that the RAP is a limitation on how long a current
property owner can control uses and users of property into the future. Very roughly speaking,
the RAP gives a current owner control during the time it takes to have grandchildren, and to
have those grandchildren grow up and then live out their lives. To avoid the complicated
calculations of the traditional RAP, some modern statutes translate its duration into a fixed
time period, for example 90 years.37
36
Perkins v. Trustees of Monroe Avenue Church of Christ, 70 N.E.2d 487 (Ohio Ct. App. 1946). For a further
discussion of the case, see Richard W.R. Brooks, Incorporating Race, 106 Colum L. Rev. 2023, 2060-61 (2006)
37
Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 578-79 (2d ed. 2012) (discussing modern
reforms of RAP).
14
Covenants running with the land are no longer considered subject to the RAP, but
earlier in the twentieth century, this point was not entirely certain. For technical reasons, any
period of twenty-one years or less will escape the RAP, and many racially restrictive covenants
were written to fall within that time period. There was another technical way to avoid the RAP,
and it too was used in early planned communities: developers wrote restrictions—including
racial restrictions-- into deeds not as covenants per se, but rather as conditions whose violation
would cause a reversion to the original owner. Since the original owner never gave up a
residual right to the property (technically, the possibility of reverter) these arrangements could
be considered to fall outside the RAP's strictures.38
On the other hand, the reversionary form hardly seemed ideal for the new community
builders of the early twentieth century. Reversions were blunderbuss instruments if an
infraction was merely a minor one; and in any event, the reversionary form suggested that the
developer would stick around as manager, whereas many wanted to complete a project and
then move on. As early as the 1910s, the developers of new restrictive subdivisions became
increasingly restive with the reversionary form for long-lasting deed restrictions.39 From their
perspective, it would be much better to pass the enforcement of deed restrictions on to the
homeowners themselves. Those were after all the truly interested parties, and it would be
more efficient for them to do their own rule enforcement, using relatively moderate means like
fines or liens, instead of the all-or-nothing reversion. The nationally recognized firm of Olmsted
Brothers, known among other things for laying out Los Angeles’ Palos Verde Estates, has been
credited with inventing the modern form of planned community governance that is still
38
39
See, e.g. Kohler v. Rowland, 205 S.W. 217, 220-21 (Mo. 1918).
Fogelson, Bourgeois Nightmares, supra note --, at 103-104.
15
familiar to this day, a form that other high-end developers like Nichols and Bouton were quick
to adopt.40 In this scheme, upon completing a project, the developer turns over the entire
governing authority to the homeowners, who then manage the private community’s affairs
through a homeowners association in which all are mandatory members. As we shall see, the
reversionary form of enforcement did continue in some planned communities and caused some
special headaches after racial covenants became illegal; but in the meantime, the HOA
(homeowners' association) or POA (property owners association) soon came to dominate
governance in planned private communities.
But what about the RAP with this newfangled form? In fact, as the new development
forms became more prevalent, concerns about perpetuities faded. While long duration was
still a negative factor for some courts in assessing the “reasonableness” of restraints on
alienation, by the mid 1920s, many of the new private communities had packages of
covenants—including racial covenants—that lasted considerably longer than twenty-one years,
averaging around thirty-three years, according to one researcher of the era.41
A lingering question, however, was whether the new institutional arrangements—
homeowner control through an HOA or POA rather than reversion to the developer—would
protect racial restrictions from the general judicial disfavor toward restraints on alienation.
Here the answer was not entirely clear. A reversion was at issue in the California Supreme
Court case that permitted racial restrictions on “use and occupancy,” but the court dropped a
hint that such restrictions might be treated differently if incorporated in a covenant, as
40
See id. [Fogelson, Bourgeois Nightmares, supra note --], at 103-106 (crediting the Olmsted brothers with the
original idea, which Bouton and Nichols followed as well)
41
Helen Monchow, The Use of Deed Restrictions in Subdivision Development 56 (1928).
16
opposed to a reversion.42 Perhaps this was one reason why some racial covenants continued to
take the form of reversions well into the 1940s.
Another covenant doctrine that was scarcely mentioned in the cases, but that
nevertheless had an impact on the form in which racial covenants were drawn up, was the
doctrine that has come to be known as “horizontal privity.” The chief function of this doctrine
is not to limit duration, but rather to give notice of restrictive covenants, particularly to those
whose properties are burdened by the covenant obligations. Basically, horizontal privity
requires that the parties originating the covenant have some special relationship to each other
– especially landlord and tenant in England, or very commonly buyer and seller of a property in
the United States. If the originators of the covenant are in a lease or sale arrangement, the
covenant is very likely to be memorialized in a major document—that is, a lease agreement or a
deed. A subsequent buyer of the covenanted property is likely to ask to see such documents,
and he or she will thus learn of the covenant and take it into account in his or her purchase
price—a matter of special importance to the purchaser of a property that is burdened by a
covenant. However, one consequence of the horizontal privity requirement is that mere
agreements between neighbors cannot act as binding covenants “running with the land” at law,
since the originators have no special relationship that is likely to be memorialized in a major
document of transfer.
In the early 1920s, in the wake of the Chicago riots, many persons in older urban areas
wanted to establish that their neighborhoods too were to remain white-only, a wish that was
very much promoted by real estate brokers and other real estate professionals of the day.
42
Los Angeles Investment Co v. Gary, 186 P. 596, 597 (Cal. 1919)
17
Unlike the new suburban developments, these neighborhoods were already built out, and thus
no developer could insert racial covenants into each deed prior to the first sale. New forms of
racial covenants began to appear in large numbers in these older cities—covenants that were
now no longer created by developers as part of a package of “attractive” or “high-class”
desiderata, but that were rather collected in neighborhood signature drives, and that were
aimed solely at racial exclusion.43
Precisely because these neighbor-driven covenants did not appear in the original
developers' deeds, they had a somewhat uncertain legal status insofar as they were meant to
bind not just the current signing parties, but also future owners and occupants of the
covenanted properties. Perhaps for that reason, many were written with elaborate symbols of
formal legality, full of “parties of the first (or second) part” and “herewiths” and token
exchanges of money. In the mid-1920s, William MacChesney, a prominent Chicago real estate
lawyer, wrote a model covenant that could be used in neighborhood drives, and it ran to
several pages of formal legalese.44
What saved these neighborhood covenants as a legal matter, ironically enough, was
equity jurisprudence. A number of courts held in favor of these neighbor covenants during the
1920s and later, ruling that so long as the covenants were recorded, new owners had
constructive notice of them, and at equity, notice was enough to hold the new owners to the
43
Philpott, The Slum and the Ghetto, supra note ---, at 185-200; Douglas S. Massey and Nancy A. Denton, American
Apartheid: Segregation and the Making of the Underclass 36-37 (1993) (hereinafter Massey & Denton, American
Apartheid). For an especially good discussion of covenant activities in Chicago, see Wendy Plotkin, Deeds of
Mistrust: Race, Housing, and Restrictive Covenants in Chicago, 1900-1953 (Ph.D. diss., 1999).
44
Philpott, The Slum and the Ghetto, supra note ---, at 189-93; the model covenant is reprinted at 407-410.
18
covenant obligations.45 Thus the doctrine of horizontal privity faded as a threat to neighbordriven covenants, although as we shall see, a very oblique reminder of it was to come later, in
one of the cases leading up to Shelley v. Kraemer.
Still another largely unmentioned older property doctrine could have decimated racially
restrictive covenants, but in fact had little impact in the early years. That doctrine was the idea
that in order for covenants to obligate future owners of a property, they covenants had to
“touch and concern land.” The touch-and-concern doctrine served a couple of purposes; one of
these, like horizontal privity, was notice. A future purchaser of a covenanted property was
likely to be aware of an obligation if it had some observable relationship to the buildings on it,
or to the way that the property could be used. But another function of touch-and-concern was
to assure that a covenant really did enhance land values in a way that future owners would be
likely to want, as opposed to imposing an obligation that was of merely personal value to its
originators and that would not outlast their ownership.
The obvious question for racial covenants was how the race of a purchaser or occupant
could touch and concern land at all. A new purchaser's race had no connection to the buildings
on the property, or to the uses that the newcomer might make of them. As one African
American would-be subdivision resident complained in a 1922 Michigan case, racial covenants
put all the members of his race in the category of nuisances.46 But this court, like others of the
era, brushed aside any questions about the relationship of racial covenants to the normal
subjects of covenants—matters like setbacks, roof lines, building materials, and residential
45
See Wayt v. Patee, 269 P. 660, 662-63 (Cal. 1928) (noting that recorded neighbor-collected covenants were
enforceable at equity even if they did not meet all the formal requirements to run with the land at law); see also,
e.g., Meade v. Dennistone, 196 A. 330 (Md. 1938); Mays v. Burgess, supra note ---, at 872.
46
Parmalee v Morris, 188 N.W. 330, 332 (MI 1922)
19
uses—and upheld racial covenants, evidently on the view that large numbers of white
homeowners really did find them valuable.
And no doubt they did. As the 1920s moved on, racial covenants worked their way
down the income scale from high-end new subdivisions to middle class and even some working
class neighborhoods, both in new subdivisions and in older city neighborhoods. Certainly racial
restrictions had the support of respectable institutions, and after the Buchanan case had blown
out racial zoning, members of those institutions recognized racial covenants as the chief legal
bulwark to prevent minority members from buying or living in white neighborhood. In a 1938
opinion, the Supreme Court of Maryland roundly blasted the Buchanan opinion and then
observed that it was no surprise that private owners would take matters in their own hands and
install racial covenants.47 Meanwhile, among real estate professionals who served white
homeowners, the importance of racial covenants for maintaining property values had become
something like a gospel verse. Between 1924 and 1950, the National Association of Real Estate
Boards included in its Code of Ethics the clause that no “Realtor” (a term that would be
trademarked for the Association) would introduce into a neighborhood “members of any race
or nationality, or any individual whose presence will clearly be detrimental to property values in
that neighborhood.”48 In keeping with this plank, real estate brokers' were often leading
figures in neighborhood covenant drives in older municipalities.49 Thus the practices that were
to come to be known as racial “steering” were not only widespread, but were regarded, no
doubt sincerely, as ethical obligations for reputable brokers.
47
Meade v. Dennistone, supra note ---, at 332-33.
Rose Helper, Racial Policies and Practices of Real Estate Brokers 201 (1969)
49
Massey and Denton, American Apartheid, supra note ---, at 36-37.
48
20
6. Racial Covenants in the 1930s and 1940s: Invincible or Vulnerable?
In the 1930s, many real estate professionals were tapped to staff the new Federal
agencies that were tasked with restoring life to the moribund Depression-era housing market.50
Along with their expertise, those professionals brought with them their views about the value
of residential segregation. The most notable example was the Federal Housing Administration
(FHA), founded in 1934. The FHA was one of the chief authors of the standard mortgage that is
now familiar in the housing market, namely the self-amortizing thirty-year, fixed rate mortgage
with a down payment of twenty percent or sometimes somewhat less. Prior to that time,
mortgages had standardly required much higher down-payments--as much as one-third--and
they were for time periods of only a few years, and not self-amortizing. The FHA's role was to
insure mortgages of the new type, in an effort to reduce the risk for lenders and thus free up
more lending activity.51
As a part of its mortgage insurance program, the FHA created an “Underwriting Manual”
for its agents to assess the properties for mortgage insurance. The Manual listed racial
covenants among the desirable features for mortgage insurance, particularly for properties in
new subdivisions.52 Subdivision developers of the later 1930s and early 1940s responded, and
they included racially restrictive covenants in the subdivision deeds, sometimes even
mentioning that these restrictions accorded with FHA criteria. 53 These subdivisions were no
longer the high-end developments of the 1910s and 1920s; now they were more likely to
consist of more modest pre-built homes. In this fashion, as Detroit historian Thomas Sugrue
50
Weiss, Community Builders, supra note ---, at 146.
Kenneth H. Jackson, The Crabgrass Frontier: The Suburbanization of the United States 195-203 (1985).
52
Federal Housing Administration, Underwriting Manual: Underwriting and Valuation Procedure under Title II of
the National Housing Act, pars 228-29, 233, 284.
53
Brooks and Rose, Saving the Neighborhood, supra note --, at 108-110, and sources cited therein.
51
21
observes, white homeowners in general came to think that that living in a segregated
neighborhood was not only something that they could expect, but that this feature had risen to
the level of a right that would be protected by their government. 54
There was, of course, another side to the story. During all this time, civil rights
attorneys associated with NAACP organizations continually challenged racially restrictive
covenants, particularly on the Constitutional argument that these covenants violated the Equal
Protection clause of the Fourteenth Amendment. But they lost case after case on this ground.
A particularly hard blow was the U.S. Supreme Court’s decision in the 1926 case of Corrigan v
Buckley mentioned earlier, where the Court stated that racial restrictions were a matter of
private “contract,” and that they did not meet the state action predicate of Fourteenth
Amendment jurisprudence. Racial restrictions thus did seem to be “constitution-proof,” as
leading real estate lawyers averred.55
Nevertheless, racially restrictive covenants did have some weak spots—weak spots that
derived more from property law than from Constitutional law prior to the Shelley case. The
weakest spots of all showed up in the after-the-fact covenants in the older cities, the covenants
that originated in neighborhood covenant drives rather than in developers’ master deeds.
These neighbor-drive covenants were hard to establish in the first place. Knocking on doors
took time and energy, and homeowners were often not motivated to enter into any such
agreements until they felt threatened by nearby minority expansion, and even then, white
homeowners were often unwilling to sign on until others had done so. The upshot was that
54
Thomas J. Sugrue, Crabgrass-Roots Politics: Race, Rights, and the Reaction Against Liberalism in the Urban
North, 82 J. Amer. Hist. 551, 564 (1995).
55
Philpott, The Slum and the Ghetto, supra note ---, at 192 (“constitution-proof”); Brooks and Rose, Saving the
Neighborhood, supra note ---, at 51-56 and sources cited therein (general failure of Constitutional arguments
against covenants prior to Shelley).
22
neighborhood covenant drives seldom succeeded in bringing in one hundred percent of a
neighborhood’s owners, a factor that created some uncertainty about the scope of covenant
obligations. In addition, there were often technical issues with the documents – lack of a
spouse’s signature, insufficient property descriptions and so on—in short, a variety of penny
ante property-law flaws that could later be attacked by lawyers for minority purchasers.56
Perhaps most important, covenanted urban neighborhoods often came to stand directly
in the pathway through which minority ghettos were most likely to expand, and as this fact
became clearer over time, the pool of potential white purchasers tended to evaporate. The
result was that in these neighborhoods, white owners of covenanted homes arrived at a kind of
strange partnership with minority purchasers, whereby both parties were willing to attack the
covenants—the white owner in order to be able to sell legally to the only feasible purchaser,
and the minority purchaser in order to find better living quarters while avoiding the status of
“lawbreaker.” Racial covenants derived from neighborhood drives could only be enforced at
equity, given the absence of “horizontal privity” between the original parties; thus white sellers
or black buyers, or both together, could challenge these covenants under the equitable
doctrine of “changed conditions” or “changed circumstances.”
Like the “touch and concern” requirement for covenants to run with the land, “changed
circumstances” was a doctrine that aimed at assuring that covenants had value before allowing
them to be imposed on successors in interest to any given property. According to the changed
circumstance doctrine, courts of equity would not enforce covenants when their original
purpose could no longer be fulfilled or when the covenants had lost all or most of their original
56
See, e.g. Scovel Richardson, Some of the Defenses Available in Restrictive Covenant Suits Against Colored
American Citizens in St. Louis, 3 Natl. Bar J. 50 (1945) (outlining various technical problems with covenants).
23
value.57 The 1930s and 1940s saw a number of these “changed circumstance” challenges to
racial covenants, including a few successes.
A celebrated successful case coming out of Chicago was Hansberry v. Lee,58 decided in
1940 by the United States Supreme Court, although the success came on other grounds. In this
case, several white and African American plaintiffs joined to attack the racial covenants of a
neighborhood not far from the University of Chicago, arguing, among other things, that
changed circumstances made the covenants unenforceable. The case veered off into a civil
procedure issue about one of the white co-plaintiffs, i.e., whether he was bound on his wife’s
earlier legal defense of the very same racial restrictions. The answer was no, giving a victory to
the covenant-breakers, but it was a bitter-sweet victory insofar as it failed to address the
legality of the covenants themselves.59
By the time of the Second World War, as African Americans continued to shoehorn into
ever more crowded urban ghettos, and as the racist message of European fascist and Nazi
governments came to appear ever more repellant, issues of segregation were beginning to boil.
With the war’s end, civil rights lawyers began to mount a re-energized Constitutional law attack
on racially restrictive covenants.60 Some relatively low-level cases nevertheless garnered
national attention, most notably when the Academy Award winning actress Hattie McDaniel,
57
See Brook & Rose, Saving the Neighborhood, supra note -- , at 131-36 (describing the use of “changed
circumstances” or “changed conditions” arguments by civil rights attorneys).
58
311 U.S. 31 (1940).
59
See Jay Tidmarsh, The Story of Hansberry: The Rise of the Modern Class Action, in Civil Procedure Stories 233-94
(2006) (describing background and development of the case).
60
For a comprehensive account of the NAACP's constitutional assault on racially restrictive covenants, see Clement
Vose, Caucausions Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (1959).
24
along with several other African American Hollywood actresses, enlisted the assistance of civil
rights attorney Loren Miller and defeated a racial covenant in a Los Angeles municipal court.61
The municipal judge in that case and other judges too were clearly swayed by
Constitutional equality issues. But property law issues were by no means irrelevant in the
larger campaign. One disappointing event was the publication of the American Law Institute’s
Second Restatement of Property in 1944. Here the Reporter repeated the conventional view
that racially restrictive covenants did qualify as “reasonable” restraints on alienation, even
though, as the Reporter’s notes observed, these covenants closed out substantial numbers of
market participants--a factor that was usually a strongly negative mark against any alienability
limitation.62 Despite the Restatement, doubts about the legality of racial covenants as a
property matter nevertheless began to crop up in several cases. In his dissent to a case in
which the California Supreme Court ruled against a “changed circumstance” claim, the
influential judge Roger Traynor remarked that in applying such equitable doctrines to
covenants, courts ought to take into account not only equity between the immediate parties,
but equity to the community at large, where racial covenants barred many minority families
from purchasing or renting property outside their cramped and overpriced quarters.63
Similarly, another distinguished judge, Henry Edgerton of the District of Columbia Court of
Appeals, agreed with Traynor and even raised a faint echo of the old horizontal privity objection
when he observed that covenants resulting from neighborhood drives--unlike those created by
61
Victory on Sugar Hill, Time Mag., Dec. 17, 1945, at 24.
Amer. Law Institute, 4 Restatement of the Law of Property 2411-2412 [ch. 30, sec. 406, comments (l.) and (m.)]
63
Fairchild v. Raines, 151 P. 2d 260, 267-69 (Cal. 1944) (Traynor, conc.)
62
25
developers for specific suburbs—had the potential to spread all across the urban landscape.64
This was a factor that should have undermined the ALI position that racial covenants could
count as “reasonable” restraints on alienation. An article by D.O. McGovney has often been
credited with convincing the Supreme Court in Shelley v. Kraemer that judicial action to enforce
racial covenants was “state action” under the Fourteenth Amendment; but McGovney’s
celebrated article began not with the Constitutional law point but rather with a spirited
refutation of the ALI viewpoint: racially restrictive covenants, said McGovney, were
unreasonable restraints on alienation.65
7. Property Law and Racial Covenants After Shelley v. Kraemer.
The Shelley case of course eclipsed much of the property law discussion of racially
restrictive covenants, ruling as it did that judicial enforcement of racial covenants was an
unconstitutional exercise of state action under the Fourteenth Amendment. Shelley, however,
has been much criticized for the looseness of its definition of “state action.”66 Even
sympathetic commentators have noted that its language, taken literally, could have
destabilized private law of all kinds; thus courts in subsequent years have generally shied away
from applying the case's holding to other topics, leaving the case as something of a dead end
for Constitutional law.67
64
Mays v. Burgess, 147 F.2d 869, 876-77 (D.C. Cir. 1945).
D.O. McGovney, Racial Residential Segregation by State Court Enforcement of Restrictive Agreements,
Covenants or Conditions in Deeds is Unconstitutional, 35 Cal. L. Rev. 5, 7-15 (1945)
66
See, e.g., Richard C. Baker, Restrictive Covenant Cases Reviewed, 3 So. Car. L. Rev. 351 (1951) (sharply criticizing
Supreme Court's rejection of racial covenants).
67
See Brooks & Rose, Saving the Neighborhood, supra note --, at 143-45; Mark Tushnet, Making Civil Rights Law:
Thurgood Marshall and the Supreme Court, 1936-1961, at 86 (1994).
65
26
Might a property approach have banned racially restrictive covenants in a way that
could have been more usable? Possibly yes, particularly in states like California, where racially
restrictive covenants were already under attack; there the courts might well have revisited the
issue whether racial covenants constituted an unreasonable restraint on alienation, and might
have also revisited the question of equity in a broader context. A state-by-state property law
approach would almost certainly have been considerably more leisurely, however, and the time
gap undoubtedly would have made a practical difference. The postwar era saw a vast
upwelling of new suburban housing development. Just a few months before the Shelley
decision, the first houses went on sale in the vast new Levittown development on Long Island,
and those houses included racially restrictive covenants.68 The Levitt corporation dropped
racial covenants after Shelley, but it continued to defend its practice of selling initially to whites
only, arguing that participants in the real estate business had to give the customers what they
wanted, at least within the law.69 Given that the firm's customers were predominantly white,
one might surmise that the firm would have continued racial covenants too as long as they
were enforceable.
Waiting for a property law approach, then, might have exacerbated the unfortunate
pattern in which new suburban housing was designated as white-only by enforceable racial
covenants running with the property, while racial covenants on existing housing in the cities
continued to clog sales and rentals to minority families. As it was, other property-related
institutions continued to foster residential segregation, notably mortgage lenders’
68
69
Brooks & Rose, Saving the Neighborhood, supra note ---, at 138-139
Id., at 185.
27
discrimination and real estate brokers’ steering, until those practices too (along with racially
restrictive covenants) were made illegal under the 1968 Fair Housing Act.70
After Shelley and especially after the 1968 Act, a handful of property law issues about
racial covenants continued to crop up in somewhat unexpected ways. One involved the very
old-fashioned legal structuring of subdivision restrictions (including racial restrictions) as
reversionary interests, rather than as the ordinary covenants in which enforcement passes on
to the homeowners and their POAs. A 1955 case from Charlotte, North Carolina revolved
around a portion of a golf course that had been donated to the public park authority early in
the century as a white-only facility, but with a possibility of reverter placed in the deed.71
When integration became mandatory in Charlotte’s public facilities, the heirs demanded the
property back, and the North Carolina courts approved, saying that unlike the judicial
enforcement of ordinary covenants, the reverter was automatic and required no state action
through the courts. The U.S. Supreme Court denied certiorari, apparently leaving racial
restrictions in the reversionary form enforceable.72
Contrary to what one might have expected, even developers in segregationist areas in
the 1950s made no rush to adopt the reversionary form in order to assure longterm
segregation, probably for the same reasons that early developers switched away from
reversions back in the 1920s: rule enforcement through reversion was apt to be overkill, and it
left developers stuck with the management of their past projects. Nevertheless, some of these
reversionary documents were still in the record books for older developments, and these
70
Fair Housing Act, 42 U.S.C. secs 3601-3619, 3604-3605.
Charlotte Park & Recreation Assn. v. Barringer, 88 S.E.2d 114 (N.C. 1955), certiorari den., Leeper v. Charlotte
Park & Recreation Assn., 350 U.S. 983 (1956)
72
Id.; see also Rose & Brooks, Saving the Neighborhood, supra note 225-27,
71
28
documents included racial restrictions. When the Fair Housing Act of 1968 forbade real estate
professionals from alluding to racial preferences, the old reversionary interests put title insurers
in a bind: their professional obligations required them to inform customers about record
obligations, yet the Act forbade them from mentioning racial restrictions. Moreover, if title
insurers failed to mention and exclude these restrictions, and if by some chance original
developers or their heirs continued to insist on them to the detriment of some minority
purchaser, the insurers could imagine themselves to be on the hook for substantial sums.
While some courts have simply treated reversionary interests as if they were covenants, to the
best of my knowledge this matter has never been entirely resolved, at least at the federal
level.73
A second post-Shelley property issue about racial covenants also mixed in Fair Housing
Act concerns. In the early 1970s, some proponents of housing integration in Washington, D.C.,
argued that the office of the Recorder of Deeds was publicizing racial preferences in violation of
the Fair Housing Act when it permitted references to racial covenants to be noted in recorded
documents. In an especially contentious decision, the D.C. Federal Court of Appeals agreed. 74
Shortly thereafter, however, a Federal court in Pennsylvania disagreed, arguing that the
Recorder’s duties were merely ministerial and did not count as publication. 75 The latter view of
the Recorder’s office appears to have remained the prevalent one.
Still another lingering property law question, one appearing in the last decade, has
embroiled the Recorder of Deeds once again, however. Some home purchasers have been
73
Rose & Brooks, Saving the Neighborhood, supra note ---, at 225-27.
Meyers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972).
75
Woodward v. Bowers, 630 F. Supp.(E.D. Pa. 1986).
74
29
outraged to find that references to racial restrictions still appear in their documents of title,
most especially in the Covenants, Conditions and Rules (CC&Rs) of older planned communities.
While few home purchasers are likely to find overt references to racial restrictions in their
actual deeds, or indeed even to bother reading the deeds, the situation is different for CC&Rs.
These documents list current obligations like parking place restrictions, common property
usage, and homeowners dues, and purchasers in planned communities are more likely to
peruse them. As real estate professionals will quickly inform home purchasers, any racially
discriminatory restrictions in the CC&Rs are unenforceable. But some purchasers regard them
as insulting or simply wrong in principle. Nevertheless, excising or renouncing them is not so
easy. Covenants formally cannot be revoked without the consent of those who own the
benefited property, and while unenforceable racial covenants hardly could count as a benefit in
any real world sense, the formality of covenant law impedes their renunciation. Similarly,
CC&Rs generally have their own rules for amendment, frequently requiring supermajority votes
and sometimes other formalities like notarized signatures.76
Since the end of the twentieth century, several states have legislated change for
recorded racial covenants—as usual led by California, but followed, interestingly enough, by the
Shelleys’ home state of Missouri.77 These states’ statutes have cut through the Gordian Knots,
simply requiring homeowner associations to remove racial restrictions from CC&Rs, and
offering individual owners a procedure by which they can renounce racial restrictions in other
title documents, without regard to the consent of any so-called beneficiaries.
76
See, e.g. U.S. v. University Oaks Civic Club, 653 F. Supp. 1469, 1472-73 (S.D. Tex. 1987) (illustrating some
difficulties in amending CC&Rs)
77
Cal. Gov’t Code, sec. 12596.2; Cal. Civ. Code sec 1352.5; Mo. Ann. Stat. sec 213.041
30
CONCLUSION
it is hard to argue that racially restrictive covenants could or should have escaped
Constitutional scrutiny and follow-on Federal legislation. The struggle against racism, after all,
defines one of our deepest national commitments, and Shelley v. Kraemer, for all its
ambiguities, was a part of waking up to those commitments.
But our property law also has moral commitments, including the very strong
commitment to the free alienability of property in the absence of very good reasons for
limitation. Treating race as such a reason represented a kind of slumber of property principles
from the late nineteenth century to the middle of the twentieth. No one can say what would
have happened without Shelley v. Kraemer and the Fair Housing Act. But one has to hope that
property law too would have wakened from its slumber.
31