Earlier this month our Director of Government Solutions, Troy Burke, participated in a PRIA panel discission on restrictive covenants. In short, he touches on the fact that the provisions in these covenants haven’t been enforceable for some time but how to handle this part of our history is a troublesome topic. While some states and counties feel it is important to identify and act, others are not interested in re-writing history.
For the sake of today’s blog, I wanted to further elaborate on why some states are opting to redact portions of these covenants. As mentioned in the PRIA recording, across the country, there are historical covenants in land records that in the past prohibited the sale or lease of property based on race, ethnicity, or religion. While not legally enforceable today, these covenants are remnants of a period in American history that have caused significant pain and harm for many Americans. In 1917, when the U.S. Supreme Court deemed city segregation ordinances illegal, discriminatory covenants began appearing in property records. Even though the Fair Housing Act made these covenants explicitly illegal in 1968, title professionals continue to discover discriminatory language when conducting title searches – a required step before a homebuyer can close on a home.
Amidst practical hurdles and varying state guidelines, there remains no one-size-fits-all solution to addressing the continued existence of these covenants. More recently, state lawmakers have proposed various approaches to further address the existence of these covenants. Some county offices provide notices on their websites and at record access points indicating the potential existence of discriminatory covenants. Others support a declaration in the land records repudiating discriminatory language or adding a new, superseding document. Redaction is also an option being considered among legislatures – completely removing all discriminatory language from existing land records, while maintaining copies to further research and quantify the harm they have caused. With each of these solutions, steps must be taken to ensure modification or removal of property record information does not inadvertently jeopardize homeowners’ property rights.
To comprehensively address discriminatory covenants in land records, first they must be identified and quantified.
Last year, Sen. Tina Smith, D-Minn., introduced the Mapping Housing Discrimination Act, which would provide funding to research and document discriminatory covenants. Passing this bill is a critical first step to understanding the far-reaching negative impacts of these covenants and building an effective legislative approach to removing these reminders of the Jim Crow Era.
Earlier this year we saw CA come out with California AB 1466, which requires the county recorder of each California county to establish a restrictive covenant modification program to assist in the identification and redaction of unlawfully restrictive covenants in public land records. The law required county recorders to develop an implementation plan beginning July 1, 2022, and to report on the progress of their restrictive covenant modification programs through 2025.
Here at Extract, it has never been our stance to tell organizations what they should or shouldn’t redact, but rather teach them what is possible with technology. As leading organization in the redaction industry, Extract is committed to proactively working towards solutions that address these covenants for the counties and states that so choose and whether it be discriminatory restrictive covenants in land records, marijuana-related charges in court records, or HIV status or drug use in medical records, Extract can automate that redaction process for you.
To view the PRIA webinar: If you are a PRIA member, the session can be seen by logging in //pria.us/members and searching “The Webinar Presentation” library.
About the Author: Taylor Genter
Taylor is a Marketing Manager at Extract with experience in data analytics, graphic design, and both digital and social media marketing. She earned her Bachelor of Business Administration degree in Marketing at the University of Wisconsin- Whitewater. Taylor enjoys analyzing people’s behaviors and attitudes to find out what motivates them, and then curating better ways to communicate with them.