Warning:  This article quotes discriminatory language found in historic legal documents.

Reading old deeds to trace the ownership history of a property can be a window into the past.  Sometimes, you come across something pleasantly unexpected – like someone granting a public easement across their land so passing horses can drink from the creek running through it.  I am not sure how useful that easement is today, but it seems like it was a sweet gesture at the time.

Unfortunately, other times, you come across something unpleasant and opening that window often reveals a darkness about the property and its prior (or lamentably current) owner.  Many deeds included language limiting the ownership of the land to “those of the Caucasian race” or even more repugnantly worded restrictions seeking to prevent ownership or occupancy of the property by certain racial groups.[1]  Regrettably, most of these vile restrictive covenants are listed as perpetual, meaning that the grantors intended them to be tied to the land forever.

However, albeit belatedly, the courts and legislature have dealt with these racially discriminatory real estate covenants.  Such covenants were struck down by the United States Supreme Court in 1948 in Shelley v. Kraemer, holding these covenants unenforceable under the Fourteenth Amendment of the United States Constitution.  Additionally, in 1968, the federal Fair Housing Act prohibited covenants that discriminate against protected classes, including, without limitation, on the basis of race. 

Sadly, even though such restrictions are unenforceable, harmful and discriminatory language persists in many property deeds and many landowners are shocked by its presence.  What can a landowner do if they wish to remove these vile restrictions from the recorded property description?

Previously, there was no way to remove these covenants, because records of ownership accumulate over time.  Fortunately, Pennsylvania dealt with this issue when Governor Josh Shapiro, on December 14, 2023, signed Act 54 of 2023 (“Act 54”) into law.  Parts of Act 54 became effective immediately, and the remainder became effective on February 12, 2024.  Act 54 impacts all unlawful restrictive covenants for all individuals and classes of individuals covered under the Pennsylvania Human Relations Act (“PHRA”).  The PHRA prohibits discrimination based on race, color, religious creed, ancestry, age, gender, national origin, familial status (in housing), and handicap or disability. 

Act 54 provides a mechanism for property owners to deal with these repugnant restrictions.  Specifically, it allows property owners to file papers with the county recorder of deeds without charge to reject racist or other discriminatory restrictions on who may own or occupy real property.  The paperwork confirms that the current owner is not associated with any such discriminatory restrictions.  The repudiation paperwork can be filed electronically in counties that allow for electronic recording of deeds. 

A common interest ownership community may also file such paperwork for repudiation.  Common interest ownership communities can include a condominium, a cooperative, or a planned community.  A board of a common interest ownership community may, upon receipt of an opinion by legal counsel, consider an unlawful restrictive covenant to be repudiated by a vote of a majority of the members of the board, thereby repudiating the unlawful restrictive covenant.  The repudiation paperwork can then be filed with the Recorder of Deeds without further need for a vote by unit owners or approval from lenders on individual units. 

Additionally, if a unit owner in a common interest ownership community submits a written request to their board to repudiate an unlawfully restrictive covenant, the board must, no later than ninety (90) days after receipt of the request, meet to determine whether an unlawfully restrictive covenant exists and should be repudiated.  If the board makes such a finding, the board is required to take swift action to have the repudiation paperwork completed and recorded with the Recorder of Deeds.

Act 54’s impact is not unlimited.  Act 54 has no effect on any covenant or restriction affixed to a property by a religious organization that prevents the use of the property for purposes that would offend that religious organization.  It also has no effect on any age-based covenant or restriction intended to create a senior living community.  Such covenants are not considered “unlawful restrictive covenants” for the purpose of the Act.

Act 54 was initiated by the Pennsylvania Bar Association’s Real Property, Probate, and Trust Law Section and sponsored by Representative Justin Fleming of Dauphin County.  It was passed by a vote of 200 to 3 in the Pennsylvania House of Representatives and passed unanimously in the Pennsylvania Senate.  Pennsylvania is now the twenty-third state to allow for the nullification or repudiation of discriminatory deed restrictions.

[1] In fact, in 1927, the National Association of Real Estate Boards (the precursor to today’s National Association of Realtors), drafted “Model Racial Restrictions” in an effort to segregate races, religious minorities, and people of differing nationalities, in the belief that such discriminatory practices would uphold property values.

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