Restrictive Covenant

Author:Kenneth L. Karst

Page 2222

Until the Supreme Court ruled their judicial enforcement unconstitutional in SHELLEY V. KRAEMER (1948), restrictive covenants were widely employed to achieve the racial SEGREGATION of urban neighborhoods in America. A restrictive covenant is a contract among owners of land, mutually limiting the uses of land covered by the covenant. Many such covenants have benign purposes: all the owners on a residential block, for example, might agree that houses will be set back thirty feet from the street. Racial covenants, however, limited the occupancy of homes on the basis of the occupants' race. They rested on an ugly premise: excluding blacks or Asians would, as one Louisiana court put it, make a neighborhood "more attractive to white people."

Such covenants were commonly adopted by landowners, or written into deeds of newly developed land, beginning in the late nineteenth century. Under existing property law, they were enforceable not only against their signers, but against the signers' heirs, assignees, and purchasers?at least so long as "conditions" had not changed. The use of the covenants accelerated after the Supreme Court decided, in BUCHANAN V. WARLEY (1917), that municipal ZONING ordinances specifying where persons of one race or another might live were unconstitutional. The typical covenant ran for twenty-five years, but some ran for fifty years or even in perpetuity.

Restrictive covenants cannot be said to be the sole cause, or even the primary cause, of residential segregation before 1948. The poverty of most blacks was itself a severe restriction on the purchase of homes; and middle-class blacks who could afford to buy were steered to "colored sections" by real estate brokers and lenders. (The latter practices became violations of federal law only in 1968.) Yet the covenants surely played their part in the segregative process, a part they could play only because they were enforceable in court.

If an owner started to build a house too close to the street, in violation of a restrictive covenant, the neighbors would be entitled to an INJUNCTION ordering the owner to stop. They might also be entitled to damages, if they could demonstrate some loss. But, subject to the covenant's limitations, the owner would be entitled to occupy the property, or sell it to any purchaser. The owner of property subject to a racial covenant, however, could not?so long as the covenant was enforceable?sell it to blacks for their...

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