Racially Restrictive Covenants in the State of Washington: a Primer for Practitioners

• Publication year: 2007

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 4SUMMER 2007

Racially Restrictive Covenants in the State of Washington: A Primer for Practitioners

Rajeev D. Majumdar(fn*)

I. Introduction

Prior to the civil rights movement, the placement of covenants, conditions, and restrictions within titles that prohibited the habitation, use, or ownership of real property by specific religious or racial groups was an accepted practice.(fn1) The Fair Housing Act of 1968(fn2) rendered these restrictions unenforceable with regard to the housing market.(fn3) The legacy of racially restrictive covenants, however, lives on in Washington where many of these unenforceable covenants still remain in the language of titles to land.(fn4) Consequently, for a variety of reasons, including the potential for offending particular racial or ethnic groups as well as the social repercussions of purchasing real estate in an area perceived to be unpleasantly exclusionary, these covenants should be removed from both title and public record.(fn5)

Despite legislative action to enable a wide array of individuals, including those with minimal property rights,(fn6) to strike racially restrictive covenants from titles and public record,(fn7) there has been very little written about the process itself. Given the ubiquitous nature of such covenants in Washington,(fn8) this article aims to provide attorneys the knowledge to effectively remove racially restrictive covenants without affecting other, beneficial covenants.

Part II of this Comment will begin by examining the history of racially restrictive covenants, specifically the nature of covenants and the role of the federal government in both spreading and hindering the usage of such covenants. Part III will discuss the legal underpinnings of what makes such covenants unenforceable in Washington, and the best processes an attorney can use to remove them.

Part IV will discuss a recent case that has significantly altered the collateral consequences of attempting to destroy racially restrictive covenants upon other associated covenants.(fn9) As a result, those seeking to retain the benefits of other covenants associated with the land should no longer fear that an entire set of beneficial covenants will be invalidated due to a specific challenge against a racially restrictive provision. Although the Washington Supreme Court has made this abundantly clear in the case of textually separate covenants, it has left open the question of multiple restrictions that are not textually distinct.(fn10)

Part V provides an analysis of Washington courts' logic and prevailing policy, and that of other jurisdictions that have tackled this issue, and Part V also argues that Washington courts would likely allow the racially restrictive portions of covenants to be excised from a document without endangering affiliated covenants, regardless of how the covenants are structured.

II. A History of Racially Restrictive Covenants

This Part first examines the history of covenants in general and their evolution under American jurisprudence. Next, this Part examines the influence and role of the federal government in both spreading and hampering the usage of racially restrictive covenants.

A. Covenants in General

A covenant is a promise or obligation contained in a binding instrument of contract such as a deed.(fn11) If a covenantor fails to fulfill a promise, the covenantee may enforce a covenant in court. The covenantor's side of the promise is called the "burden" side, and the covenantee's side is called the "benefit" side.(fn12) A covenant takes the form of a promise to perform or abstain from an action affecting the land, relating in some way to the property owner's legal interests.(fn13)

Covenants come in a myriad of forms, and stem from centuries old English common law. A "running" covenant can descend to successors in interest,(fn14) such as future owners or assignees of the land, and can be put in action by or levied against such successors.(fn15) Running covenants are found in two general forms, real and equitable, and the latter are commonly called "equitable servitudes."(fn16) Breaches of real covenants are subject to damages, and one who has breached a covenant may be forced to pay money damages.(fn17) Equitable servitudes, on the other hand, may be equitably enforced, meaning a court can award an injunction or an order for specific performance.(fn18)

Real covenants arose earlier in history, first appearing in English common law at the King's Bench in 1583.(fn19) Equitable covenants, or equitable servitudes, are a relatively late legal development, arising out of an English Chancery Court decision in 1848.(fn20) Prior to its importation from English law, American courts had formed "indigenous theories that incorporated both a doctrine of real covenants and of equitable restrictions" similar to equitable covenants.(fn21)

A major difference in distinguishing between the two categories is that, unlike an equitable servitude, a real covenant requires horizontal privity, meaning that a land transfer between a grantor and grantee is expressly tied to the original promise.(fn22) Though the language stems from English court usage, the development of these concepts in American law was not entirely identified with the subject matter distinctions that might be historically assumed in English courts by use of the words servitude or covenant.(fn23) For example, in the formative period of American land-use law, the most widely used forms of covenants were those aimed at restricting land uses between neighbors.(fn24) In particular, the greatest concern of land owners and courts was working out a theory that either allowed neighbors to enforce a promise against the other, or to allow a subdivision association to enforce promises against the owners.(fn25)

These restrictive covenants were once considered a form of spurious easement by American courts, but restrictive covenants have been treated as equitable servitudes under modern case law.(fn26) Restrictive covenants are now synonymous with equitable servitudes, as courts hold the requirement of privity is not necessary.(fn27) Consequently, despite the nomenclature used, racially restrictive covenants are actually equitable servitudes, given that horizontal privity is not needed when a group of landowners individually agree to such a restriction and that courts favor interpretations of equitable servitudes over real covenants.(fn28) For the purposes of this Comment, however, the term covenant will be used for both equitable servitudes and real covenants, although the term is most often used to refer only to real covenants.

Given that a basic principle of property law is the free alienability and use of land, it is important to consider that although covenants encumber titles in some fashion, they are often used to "make land more marketable and improve its value."(fn29) Being mindful of free alienability, Washington courts have held that "restrictive covenants, being in derogation of the common law right to use land for all lawful purposes, will not be extended to any use not clearly expressed, and doubts must be resolved in favor of the free use of land."(fn30)

B. Racially Restrictive Covenants and Federal Influence

The practice of using racially restrictive covenants was once widespread throughout the United States and arose in the early twentieth century as a method of protecting the "value" of residential property.(fn31) Extensive use of racially restrictive covenants in the Seattle area-where relatively dense populations of minorities have existed in comparison to most of Washington-began in the 1920s.(fn32) In particular, these racially restrictive covenants applied primarily to "citizens of Negro or Oriental ancestry and (in some cases) Jews."(fn33) As in most Western states, the racially restrictive covenants in Washington also targeted Native Americans, Pacific Islanders, and people of Mexican ancestry.(fn34) The targeting of African Americans and East Asians in particular appears to follow a trend of local responses throughout the West towards influx populations of non-whites.(fn35) For example, in California's Imperial Valley, an influx of Punjabi farmers in the early twentieth century led to a bar on selling land to "Hindoos" through laws passed by local government.(fn36)

The federal government tackled racially restrictive covenants both through the courts and through legislation. This Part will now explore Supreme Court decisions that invalidated public usage of such restrictions. Then, this Part will examine how the federal government helped promulgate the usage of private racially restrictive covenants. Finally, this Part will outline a national policy shift that led to the widespread condemnation of such restrictions.

1. Early Supreme Court Decisions

Not long after the initial proliferation of racially restrictive covenants, the U.S. Supreme Court, relying on the Fourteenth Amendment, put an end to state-sponsored promulgation of racially restrictive covenants. In 1917, Buchanan v. Warley invalidated racial-segregation ordinances like those seen in the Imperial Valley.(fn37) The plaintiff, a seller of a parcel of property, challenged a Louisville city ordinance that would deny an African American purchaser from taking possession, which was a requirement of the sale.(fn38)...