RACIAL COVENANTS

Many residential neighborhoods in the United States built in the early Twentieth century were constructed on large tracts of land (often farms) which real estate developers purchased and partitioned into lots to form a subdivision. Legal documents known as deeds were used to transfer ownership of these individual lots from the developer to either homebuilders or homebuyers, and agreements known as restrictive covenants (legally enforceable provisions which have long been recognized as a fundamental part of American property law) were often included in the deeds to place certain limits on how the land could be used ① .  These rules of the community often seek to maintain the attractiveness and value of that property and enforce a standard of uniformity across the development.  Common examples of restrictive covenants forbid the raising livestock or require the lawn to be regularly mowed ② .   

 

Real estate developers who chose to create a homeowner’s association also recorded any restrictive covenants in a legally binding document called the Declaration of Covenants, Conditions, and Restrictions (CC&R).  The CC&R, which was filed with the county, assigned the power and legal authority to administer and enforce restrictive covenants to the association's elected Board of Directors ③.

 

Starting in the early 1900s, racial restrictive covenants (or simply racial covenants) were propagated across the country by homebuilders and the real estate industry (and later, at much greater scale, by federal agencies such as the Home Owners Loan Corporation and the Federal Housing Administration) and forbade property owners from allowing non-White people to buy, live on, or use their property ④.  

 

 

 

 

 

 

 

 

 

 

For three decades, courts enforced racial covenants such that “if a Black renter or homebuyer attempted to move into a house with a restrictive covenant, any White resident in that suburban development could sue to remove them from the neighborhood ⑤ .”  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Although the majority of racial covenants appear to specify that only members of the white or Caucasian race (and some, like that found in the Clyde Hill subdivision of Seattle, included an “Aryans only” clause ⑥) may own, occupy, or otherwise use property in residential areas designated as white communities, others enumerate the various prohibited racial, ethnic, and religious groups.  One example in Minneapolis, which originated with the developer, prohibited owners from selling or renting to anybody of “Chinese, Japanese, Moorish, Turkish, Negro, Mongolian, or African blood or descent ⑦ .”  Some restrictive covenants prohibited property ownership or occupancy based on religion, specifically against Jews ⑧ .  The use of racial covenants quickly became so popular that in “1937 a leading magazine of nationwide circulation awarded ten communities a ‘shield of honor’ for an umbrella of restrictions against the ‘wrong kind of people ⑨.’”  A 1967 survey of all FHA subdivisions conducted by the agency found that, of the more than 400,000 homes built in the five years since President Kennedy’s Executive order in 1962 guaranteeing nondiscrimination in housing financed and insured through FHA and the Veteran’s Administration, only 3.3 percent had been sold to Black homebuyers ⑩.

 

One such example in Upstate New York was used by real estate developers Wilfred S. Winchester and Jesse W. Davis, who subdivided parts of the former Samuel Campbell Estate in New Hartford and Whitestown, NY, into the Bon Aire Estates, which included Fairway (then known as Coventry Avenue), Washington, and Winchester Drives and Read Street ⑪.  The specific racial restrictive covenant, which was found in a Declaration of Restrictions for the Bon-Air Estates signed by Winchester and filed in the Office of the Oneida County Clerk on 18 April 1939, and which applied to all 33 lots of the subdivision, read: “No person or persons other than those of the Caucasian race shall use or occupy any building on any lots in this sub-division, except that this covenant shall not prevent occupancy by domestic servants of any race ⑫.”

 

In Shelley v. Kraemer, the U.S. Supreme Court held in 1948 that although racially restrictive covenants are not per se illegal, the Fourteenth Amendment did prevent courts from enforcing them because to do so would constitute state action.  Despite this decision, racial covenants persisted as they were viewed as voluntary agreements between private buyers and sellers, giving neighbors legal leverage over one another’s sales and rentals by threatening to sue for damages rather than seeking an injunction against the sale ⑬ .

 

The use of racial covenants was finally made illegal through The Fair Housing Act of 1968, under which it became unlawful to refuse to sell, rent to, or negotiate with any person because of that person's race, color, religion, sex, familial status, handicap, or national origin.  And yet they still crop up in the chain of title.

 

Covenants, including racial covenants, “run with the land,” and this “‘sticky’ quality is an artifact of the Anglo-American conveyancing system, which looks to the history of past transactions to ascertain the claims against any given title ⑭.”

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① Bond, C.B. (2004).  Does Increasing Black Homeownership Decrease Residential Segregation?  Unpublished dissertation, University of Notre Dame.

② “Confronting racial covenants: How they segregated Monroe County and what to do about them.”  Accessed at https://law.yale.edu/sites/default/files/area/clinic/document/2020.7.31_-_confronting_racial_covenants_yale.city_roots_guide.pdf

③ “A Beginner's Guide To Restrictive Covenants In Real Estate.”  Accessed at https://www.rocketmortgage.com/ learn/restrictive-covenants

④ “The 5 Key Elements Of Your Legally Binding CC&Rs.”  Accessed at https://www.hopb.co/blog/5-key-elements-of-legally-binding-hoa-ccrs

⑤ “Confronting racial covenants: How they segregated Monroe County and what to do about them.”  Accessed at https://law.yale.edu/sites/default/files/area/clinic/document/2020.7.31_-_confronting_racial_covenants_-_yale.city_roots_guide.pdf

⑥ “Restricting with Property Covenants,” Wilson, et al (2020).  Accessed at https://ontheline.trincoll.edu/restricting.html

⑦ “It’s Not Over: A Historical and Contemporary Look at Racial Restrictive Covenants.”  Accessed at https://www.homelight.com/blog/buyer-racial-restrictive-covenants/

⑧ Ibid.

⑨ “Restricting with Property Covenants,” Wilson, et al (2020)  https://ontheline.trincoll.edu/restricting.html

⑩ “Understanding Fair Housing,” U.S. Commission on Civil Rights Clearinghouse Publication 42, February 1973.  Accessed at https://files.eric.ed.gov/fulltext/ED075565.pdf

⑪ Ibid.

⑫ “Sect. 1 of Re-Subdivision of 1914 Map of Bon-Air Estates, located in the Towns of New Hartford and Whitestown, Oneida County, N.Y.”  (Map Book 29, page 51, Map Room of the Office of the Oneida County Clerk, Oneida County, NY).

⑬ “Declaration of Restrictions,” 18 April 1939, Liberty Homes, Inc. (Deed Book 987, page 377, Records Department of the Office of the Oneida County Clerk, Oneida County, NY).

⑭ https://supreme.justia.com/cases/federal/us/334/1/

⑮ “Racial Covenants and Segregation, Yesterday and Today,” Brooks and Rose (2010).  Accessed at

    http://www.law.nyu.edu/sites/default/files/siwp/Rose.pdf

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© MAY 2026