Striking Restrictive Racial Language from Your Title

Restrictive racial covenants—which excluded people of color from purchasing, leasing, or occupying homes in certain neighborhoods, developments, or regions—have been deeply embedded in the practices of the housing industry since the early 20th century. Although the Supreme Court ruled that municipally mandated racial zoning was unconstitutional with 1917’s Buchanan v. Warley, this decision extended only to government action such as city ordinances, and not to private agreements such as restrictive covenants.

This left the door open for discrimination in real estate to continue. The Supreme Court’s 1926 ruling in Corrigan v. Buckley validated the use of racially restrictive covenants, and they quickly became common practice. Shortly thereafter, these restrictions were endorsed by federal housing administrators and lenders alike, creating a system that shaped communities and segregated neighborhoods throughout the country.

In 1948, with Shelley v. Kraemer, the United States Supreme Court ruled that these racial deed restrictions were no longer enforceable. But the structures of segregation remained intact and real estate brokers, agents, and property owners continued to discriminate based on race.

Congress struck a blow against these practices by passing the Fair Housing Act in 1968, which prohibited discrimination on the basis of race, color, religion, or national origin in the sale or rental of housing. However, the language of restrictive racial covenants is still written in the chain of title for many homeowners nationwide.

Striking Restrictive Language By State

As part of our commitment to diversity, equity, and inclusion, Windermere has prepared educational content on how homeowners can remove racially restrictive language from their chain of title. Of the ten states that Windermere operates in, there are processes in place to remove this language in Arizona, California, Colorado, Idaho, Nevada, Oregon, and Washington. Homeowners in Idaho will note that the process to strike restrictive language is subject to change, pending the legislature’s passing of I.C. § 55-616 in 2021. In Hawaii, Montana, and Utah, there is currently no process for the removal of discriminatory covenants from a chain of title, nor is there pending legislation to address the issue. In Hawaii and Utah, although there is legislation in place declaring such covenants void, there is nothing currently in place that permits a court or auditor to strike the restrictive language from the title.