Discriminatory restrictive covenants are something we talk about more than usual in this blog for a type of clause that hasn’t been enforceable in 75 years, but increased awareness, legislation, and community pressure have brought these vestiges of prejudice back to the forefront of public consciousness.
The University of Minnesota’s ‘Mapping Prejudice’ project is one of these groups trying to get a handle on the discriminatory covenants that still exist within our land records. Truly a pioneer in this area, Mapping Prejudice began back in 2016 to highlight some of the historical injustices that have led to present-day inequalities. Minnesota has large racial disparities in its housing and the project was also highlighted by the media in the aftermath of the murder of George Floyd in an attempt to understand the racial environment of the Twin Cities.
Other universities have joined the cause in mapping regional discriminatory covenants as well including the University of Washington, which received funding to map discriminatory restrictive covenants and alert homeowners of their presence. Virginia Tech received funding from the National Historical Publications and Records Commission to help map discriminatory covenants in and around Chicago.
Other groups taking on this challenge include Lake Forest College, also working around Chicago, The University of Nebraska, and even individuals within county land records offices like in Wake County, North Carolina.
Amidst discussion around these covenants, the state of California’s Assembly Bill 1466 kicked land records modifications into high gear, requiring its counties to create restrictive covenant modification programs to redact the offending language. While other states are currently enacting laws allowing for repudiation of covenants discovered by citizens, California counties are going back through all of their land records to find and redact these covenants.
To be clear, discriminatory restrictive covenants aren’t legal in the United States at all, but states are taking varying approaches when it comes to how to reckon with these clauses. For now, California is the only state that is going to proactively remove these covenants, but some states will notify homeowners if a clause is in their deeds, others allow for owners to submit a modification request, a handful won’t record deeds with these covenants, and some just rely on federal law.
For the most part, this means it will be up to homeowners and buyers to look for these discriminatory covenants and submit a form to remove them or repudiate them, if anything. Mapping projects at universities are a great way of discovering where these clauses live but will take time as they largely operate with volunteer help.
To be able to identify and redact restrictive covenants across the tens of millions of pages of history that a county in California might have, recorders are turning to automation. Extract’s automated redaction software ID Shield can identify and permanently remove this language instantaneously. We’ve worked in tandem with both California counties and others that want to remove this text without a legal mandate to eliminate common false positives (identifying language that says “only white persons” or something similar while not flagging a common name like “Mike White”), perfect exchanges with legal departments, and turbocharge an arduous process.
A breakdown of current state laws and actions regarding discriminatory restrictive covenants can be found below, but if you’re a recorder, researcher, or legislator that would like to see how automated redaction can make your restrictive covenant modification process hassle-free, please take a look at our solution or reach out for a personalized consultation or demonstration.
States that have passed legislation for discriminatory restrictive covenant modifications:
California – Assembly Bill 1466: Requires all counties to create a plan and subsequently redact all discriminatory restrictive covenants from land records.
Connecticut – House Bill 6665: Prohibits restrictive deed covenants based on race and allows property owners to remove such language.
Delaware – Senate Bill 243: Prohibits the recording of discriminatory covenants and allows homeowners to request redactions.
Florida – Section 712.065: Discriminatory restrictive covenants are void and owners or communities can request to have them removed.
Illinois – Public Act 102-0110: Property owners can request removal of discriminatory restrictive covenants.
Idaho – Senate Bill 1240: Counties provide processes for homeowners to submit free restrictive covenant modifications and recorders can refuse to accept deeds with these covenants.
Maryland – House Bill 1077: Allows for removal of discriminatory restrictive covenants at no charge.
Michigan – House Bill 4416: Discriminatory restrictive covenants cannot be recorded and homeowners can request that they be removed.
Minnesota – House File 51: Property owners can submit a form to remove restrictive covenants.
New Jersey – A-5390/SB-2861: Directs homeowners to review their deeds and recorders to not record any deeds with discriminatory covenants.
Nevada – Senate Bill 368: Defines a procedure for homeowners to submit a request to remove discriminatory restrictive covenants.
Ohio – House Bill 110: Attorneys preparing deeds may omit discriminatory restrictive covenants with immunity from civil liability.
Oklahoma – House Bill 2288: Homeowners and purchasers can request that a discriminatory restrictive covenant is removed.
Oregon – House Bill 4134: Property owners can submit a form to have restrictive covenants removed.
Texas – Property Code 5.0261: Allows for property owners to request that discriminatory covenants are removed.
Utah – House Bill 347: Allows property owners to record a restrictive covenant modification without fee.
Virginia – Code of Virginia 36-96.6: Removal of restrictive covenants can’t be charged for and their existence is reason to refuse acceptance of a property document until it is remedied.
Washington – House Bill 1335: Provides methods for removing restrictive covenants and funding for the University of Washington to find and notify homeowners of covenants.
States where discriminatory restrictive covenants are explicitly made illegal but without an immediate resolution process:
Arkansas – Arkansas Fair Housing Act: Discriminatory restrictive covenants are voided.
Colorado – Statute 24-34-501 & 38-30-169: Restrictive covenants are invalid and attorneys may remove them in transactions.
Georgia – GA Code 44-5-60: Removes automatically renewing discriminatory covenants.
Hawaii – Statute 515-6: Illegal to insert or enforce a discriminatory restrictive covenant.
Indiana – House Bill 1314: Allows home purchasers to file a document repudiating discriminatory covenants.
Maine – Statute Title 33: Covenants cannot include discriminatory restrictions based on race.
Massachusetts – Section 23B: Voids restrictive covenants. Bill H.1465 would proactively remove the covenants has not been passed.
Missouri – House Bill 1662: No newly recorded deeds can contain discriminatory covenants.
Montana – Code 49-2-305: Discriminatory covenants are made void.
Nebraska – Fair Housing Act 20-318: Restrictive covenants cannot be included or honored in any sale
New Hampshire – RSA 354-A: Prohibits honoring or adding restrictive covenants with some religious exemptions.
Tennessee – TN Code 4-21-604: Discriminatory covenants are void and cannot be honored.
West Virginia – Code 36-4-18: Discriminatory covenants are invalid.
States with proposed action on discriminatory restrictive covenants:
Kansas – House Bill 2376: Would not allow discriminatory restrictive covenants to be recorded and would provide a method for homeowners to remove them.
New Mexico – Senate Bill 286: Would prohibit deeds from being submitted with discriminatory restrictive covenants.
New York – Assembly Bill 2021-A6152A: Would require the modification of discriminatory restrictive covenants prior to a home sale.
North Carolina – Senate Bill 427: Would allow homeowners to discharge prohibited restrictive covenants.
Wisconsin – Senate Bill 439: Would allow property owners to discharge and release discriminatory restrictive covenants.
States without action on discriminatory restrictive covenants:
Alabama
Alaska
Arizona
Iowa
Kentucky
Louisiana
Mississippi
North Dakota
Pennsylvania
Rhode Island
South Carolina
South Dakota
Vermont
Wyoming – House Bill 91: Failed in February 2023
About the Author: Chris Mack
Chris is a Marketing Manager at Extract with experience in product development, data analysis, and both traditional and digital marketing. Chris received his bachelor’s degree in English from Bucknell University and has an MBA from the University of Notre Dame. A passionate marketer, Chris strives to make complex ideas more accessible to those around him in a compelling way.