Restrictive Deed Covenants

Racial deed restrictions and restrictive covenants were discriminatory real estate provisions that prohibited owners from selling or leasing their properties to members of specified racial or religious groups. Used widely across the United States (and Canada) from the 1880s to the 1950s, they were attached to properties in several ways. Private developers included racial restrictions in the subdivision plans or first deeds of newly constructed residential properties. Owners of existing properties in older neighborhoods came together to add similar “agreements” to their deeds. Restrictions and covenants generally lasted for periods ranging from 20 to 30 years, and were renewable—thus, they could continue for an indefinite amount of time. Violations were handled through lawsuits, which, if successful, led to the voiding of sales and ejection of tenants—thus drawing state and local courts into the business of evicting individuals and families solely on the basis of race or religion.

These provisions were adaptations of the deed restrictions and restrictive covenants that, until the [Page 680]advent of zoning in 1915, had been the primary mechanism for regulating the physical features and uses of property. Typically, they would establish setback requirements for buildings, as well as their use (for example, residence or business) and minimum cost of construction—thus, indicating their implicit role in influencing the class of future residents. However, as white realtors and residents of cities in the North and South reacted in a negative fashion to the increased numbers of racial minorities seeking housing, they added “race” to the characteristics suitable to regulate.

The first litigation against such restrictions is recorded in California, in an 1892 case in Ventura County involving Chinese immigrants and their descendants. In Gandolfo v. Hartman, the U.S. Southern California Circuit Court ruled that judicial enforcement of covenants was unconstitutional because of the 14th Amendment ban on racially discriminatory action by states. However, in subsequent years, state courts generally ruled that court enforcement of covenants was constitutional, because the agreements themselves were privately initiated, and private discrimination was not prohibited by the Constitution or public statute. This was an especially important distinction after the U.S. Supreme Court ruled in 1917 in Buchanan v. Warley that cities and states could not enact racial zoning ordinances because of the 14th Amendment. Although already in wide use in the South, racial deed restrictions and restrictive covenants were adopted nationally as a means of blocking access to white neighborhoods and subdivisions (often buttressed by harassment and violence). Any uncertainty about the high court's stance on racial deed restrictions and restrictive covenants was lifted in 1926 in Corrigan v. Buckley. In that case, the Supreme Court refused jurisdiction but used language that appeared to acknowledge the constitutionality of covenants. This resulted in state supreme courts in Kentucky, Maryland, Oklahoma, and Wisconsin, and lower courts in Missouri and New York, dismissing the issue of the constitutionality of covenants.

Thus, from the 1920s through the 1940s, real estate developers and agents and residents of cities across the United States—including Atlanta, Chicago, Columbus, Denver, Detroit, Kansas City, Los Angeles, Louisville, Milwaukee, Minneapolis, New York, Norfolk, Phoenix, St. Louis, and San Francisco—embraced restrictions, as did those in their suburban rings. Covenants were adopted by all classes and ethnic groups, against a variety of alleged “racial” groups—African Americans, Asians (Chinese, Japanese, East Indians), Hispanics (deemed legally white), Jews (“Hebrews,” “non-Aryan Caucasians”), and smaller numbers of Italians, Syrians, Arabs, and other groups. Campaigns to adopt them were costly, involving the need to obtain notarized signatures from owners of between 75 percent and 95 percent of the frontage of a neighborhood. Only the most organized groups were able to launch them, often with financial and personnel assistance from local realtors.

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