Deed Restriction Based on Race

by Cc
(Iowa)

Visitor Question: If you have a deed restriction based on race would it be
A. Voidable but the conveyance is still valid
Or
B. Void but the deed is still valid

Editors Reply: The conveyance (sale) and deed are both still completely valid, even if the property in question is subject to a deed restriction prohibiting sale to a different race.

In the U.S. deed restrictions based on race were outlawed as a result of a 1948 case in the Supreme Court, Shelley v. Kraemer. Kraemer and other white families had sought to block Shelley, an African-American, from purchasing property governed by such a deed restriction. Kraemer sought help from a state court in enforcing the restriction (as anyone who wants to enforce a deed restriction must, unless there is a homeowners associations with such powers).

So the Supreme Court said that now that a court was involved, this matter was a state action, and that under the 14th Amendment to the U.S. Constitution, equal protection under the law must be afforded the African-American potential homeowner.

Many older deeds still carry that deed restriction, even though it is unenforceable everywhere in the U.S. The old deed restriction does not present a problem of any kind in reselling the property, or in using and enjoying it in a normal way.

If someone wants to clean up the old deed restriction, that may be easy or difficult depending on both the state in which this restriction was imposed, and on the specific wording of the restriction. Sometimes unanimous agreement among hundreds of people will be required, sometimes heirs of the long-dead original owner who imposed the restriction must be located and must agree to lifting the restriction.

Usually we come down on the side of going through the work to change deed restrictions where there is no intention of enforcing them, but in this case, since it has long been the law of the land that this type of deed restriction is illegal, it is not worth the bother for many people.

Now let's say that you are a member of the group of people targeted by the restrictive covenant. Although the "no blacks" covenant was most common in American history, there are "no Jews" covenants that were written as well.

If you wish to wipe out the restriction as a matter of principle, the general procedure would be to try to discover whether your property is unique in this restriction, or whether a whole subdivision or other such unit is covered by the restriction. Then you need to find an attorney to work with. The attorney may enlist the help of a title company to uncover all of the relevant history, and then the attorney's office may have to do some detective work to find everyone who would have to consent to the change.

So you can see that it could be an expensive proposition, but if you wanted to pursue removing a race-based deed restriction, a preliminary visit with an attorney would tell you how tricky this particular action would be likely to be.

But in the meantime there is no need to worry about whether your purchase, sale, or deed is valid. It is.

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