Covenants That Discriminate On Race – ARE STILL A PROBLEM

Husch Blackwell LLP


The property was subject to a discriminatory restrictive covenant recorded in 1953 that stated: “No race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.”  In 2017 Plaintiffs obtained the property by deed referencing that the deed was subject to covenants.  Plaintiff then filed suit to “have the discriminatory restrictive covenant declared void and to ‘strike that same subsection from public record and eliminating it from the title of the property.’”  The County contested the motion arguing that “documents in a chain of title are not to be physically altered once recorded.  Even when a document is recorded in error, it is not destroyed. Instead, a corrected document is re-recorded.”  The County “emphasized that the integrity of a property lot’s chain of title is based on the indestructability of recorded documents in the custody of the local recording office.”

Trial Court

The trial court denied Plaintiffs motion holding that the law does not require the offending language to be physically removed from the public record.  The court also declared the offending provisions void under the law stating, “that the provision was stricken by order of the court.”  The court directed a copy of the order be filed with the Spokane County Auditor’s Office in the records for [the] property.  Plaintiffs appealed.

Appeals Court

Affirmed the trial court holding that an order striking a void covenant is self-executing under the law. “While the order should be included as part of the official property record, there is no additional need to physically alter existing records.”

  1. “Real estate documents with racially restrictive provisions are offensive, morally reprehensible, and repugnant;”
  2. Those same documents, despite being morally reprehensible, are part of “our living history.”
  3. “A policy of whitewashing public records and erasing historical evidence of racism would be dangerous. It would risk forgetting and ultimately denying the ugly truths of racism and racist housing practices.  Such an outcome cannot be squared with the antidiscrimination purposes of [the law].”

May v. Spokane County, 481 P.3d 1098 (2021, Wash)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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