A covenant, in its most general sense and
historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, a covenant was distinguished from an ordinary contract by the presence of a
seal
Seal may refer to any of the following:
Common uses
* Pinniped, a diverse group of semi-aquatic marine mammals, many of which are commonly called seals, particularly:
** Earless seal, or "true seal"
** Fur seal
* Seal (emblem), a device to impr ...
. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of
consideration. In United States contract law, an
implied ''covenant'' of good faith is presumed.
A covenant is an agreement like a
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
. The covenantor makes a promise to a covenantee to perform an action ''(affirmative covenant'' in the United States or ''positive covenant'' in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
) or to refrain from an action (negative covenant). In
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
law, the term ''real covenants'' means that conditions are tied to the ownership or use of land. A "covenant running with the land", meeting tests of wording and circumstances laid down in
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, imposes duties or restrictions upon the use of that land regardless of the owner. Restrictive covenants are somewhat similar to
easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
s and
equitable servitude
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England and Wales the term is defunct and in Scotland it has very long ...
.
["Integration of the Law of Easements, Real Covenants and Equitable Servitudes"](_blank)
''Washington Law Review''. In the US, the
Restatement (Third) of Property takes steps to merge the concepts as servitudes. Real covenant law in the US has been referred to as an "unspeakable quagmire" by one court.
A covenant for title that comes with a
deed
In common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring ...
or
title to the property assures the purchaser that the grantor has the ownership rights that the deed purports to convey.
Non-compete clauses in relation to contract law are also called restrictive covenants.
Landlords may seek and courts may grant
forfeiture of leases such as in
leasehold estate
A leasehold estate is an ownership of a temporary right to hold land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. Although a tenant does hold rights to real property, a ...
s for breach of covenant, which in most jurisdictions must be relatively severe breaches; however, the covenant to pay rent is one of the more fundamental covenants. The forfeiture of a private home involves interference with social and economic
human rights
Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
. In the case of leases
commuted to a large sum payable at the outset (a
premium
Premium may refer to:
Marketing
* Premium (marketing), a promotional item that can be received for a small fee when redeeming proofs of purchase that come with or on retail products
* Premium segment, high-price brands or services in marketing, ...
), that has prompted lobbying for and government measures of
leasehold reform particularly in the law of
ground rents and
service charges.
Related to land
In
property law
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
, land-related covenants are called "real covenants", " covenants, conditions and restrictions " (CCRs) or "deed restrictions" and are a major form of covenant, typically imposing restrictions on how the land may be used (negative covenants) or requiring a certain continuing action (affirmative covenant). These may also "run with the land" (called a ''covenant appurtenant''), meaning that any future owners of the land must abide by the terms, or may apply to a particular person (called a ''covenant in gross'' or ''of a purely personal nature''). Under English law, affirmative covenants typically do not run with the land; in the United States such covenants are examined more closely, but with exceptions affirmative covenants have been permitted to run with the land.
The covenant may be shown in the
deed
In common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring ...
and should be disclosed to prospective purchasers; it may also be
recorded, or in the case of
Commonwealth countries shown in
Torrens title
Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence (termed " indefeasibility") of title of the person recorded on the regist ...
. Real covenants and
easement
An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
s or
equitable servitude
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. In England and Wales the term is defunct and in Scotland it has very long ...
s are similar and in 1986, a symposium discussed whether the law of easements, equitable servitudes, and real covenants should be unified.
As time passes and the original promisee of the covenant is no longer involved in the land, enforcement may become lax.
Covenants may be imposed through
homeowner associations, and controversy has arisen over selective enforcement. Historically, particularly in the United States, exclusionary covenants were used to exclude racial minorities. Some covenants exist for safety purposes, such as a covenant forbidding the construction of tall buildings in the vicinity of an airport or one restricting the height of fences/shrubs at street corners (so as not to interfere with drivers' sight lines). Covenants may restrict everything from the height and size of buildings to the materials used in construction to superficial matters such as paint color and holiday decorations. In residential areas, covenants may forbid "dirty" businesses (such as
feedlots or chemical production facilities) or business use entirely, or modifications such as
amateur radio
Amateur radio, also known as ham radio, is the use of the radio frequency spectrum for purposes of non-commercial exchange of messages, wireless experimentation, self-training, private recreation, radiosport, contesting, and emergency communic ...
antenna. Amateur radio restrictions have been particularly controversial; in 1985 the
U.S. Federal Communications Commission
The Federal Communications Commission (FCC) is an independent agency of the United States federal government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdictio ...
issued PRB-1
preempting state and local restrictions, but not private restrictions; in 2012 after Congress passed a law requiring study of this issue (at the urging of amateur radio group
ARRL
The American Radio Relay League (ARRL) is the largest membership association of amateur radio enthusiasts in the United States. ARRL is a non-profit organization, and was co-founded on April 6, 1914, by Hiram Percy Maxim and Clarence D. Tuska o ...
), the FCC declined to extend this preemption. Some US states have enacted legislation requiring homeowners' associations to provide reasonable accommodations for amateur radio antennas under the rationale that amateur radio provides public service communications in the event of an emergency, major disaster, or special event.
In Canada, governmental authorities may use restrictive covenants as well as zoning. For instance, the city of Calgary's requirement that buildings in the general vicinity of
Calgary International Airport
Calgary International Airport , branded as YYC Calgary International Airport, is an international airport that serves the city of Calgary, Alberta, Canada. It is located approximately northeast of downtown and covers an area of 20.82 squa ...
be under a certain height is registered against virtually every title in the northeast quadrant of the city as a restrictive covenant, not as a zoning by-law.
Requirements in US Law
The covenant will typically be written in the deed, and must be in writing due to the
statute of frauds. Although scholars have argued that some of the following should be significantly relaxed, in order for the burden to run with the land the following must apply:
* The covenant must be in writing to satisfy the
Statute of Frauds.
* The original parties to the agreement must have intended that successors be bound by the agreement.
* A subsequent owner must have had
actual notice Actual notice is a law term, used most frequently in civil procedure. It is notice (usually to a defendant in a civil proceeding) delivered in such a way as to give legally sufficient assurance that actual knowledge of the matter has been conveyed ...
, inquiry notice, or
constructive notice Constructive notice is the legal fictionThe phrase "legal fiction" should not be construed to mean that the concept of constructive notice is legally invalid. that signifies that a person or entity should have known, as a reasonable person would hav ...
(record) of the covenant at the time of purchase.
* The covenant must touch or concern the land. The covenant must relate to the use or enjoyment of the land.
* There must be horizontal privity between the original parties.
** Horizontal privity is found if, at the time the original parties enter into the agreement, those parties share some interest in the subject land independent of the covenant (e.g.,
landlord
A landlord is the owner of a house, apartment, condominium, land, or real estate which is rented or leased to an individual or business, who is called a tenant (also a ''lessee'' or ''renter''). When a juristic person is in this position, the ...
and
tenant
Tenant may refer to:
Real estate
*Tenant, the holder of a leasehold estate in real estate
*Tenant-in-chief, in feudal land law
*Tenement (law), the holder of a legal interest in real estate
*Tenant farmer
*Anchor tenant, one of the larger stores ...
, mortgagee and mortgagor, or holders of mutual
easements). Individual state statutes can alter the requirements of horizontal
privity of estate. Privity may be instantaneous and mutual; instantaneous privity is present when the restrictive covenant is within the deed initially conveyed from the grantor to the grantee.
* There must be strict vertical
privity of estate.
** Vertical privity characterizes the relationship between the original party to the covenant and the subsequent owner. To be bound by the covenant, the successor must hold the entire
estate in land
An estate in land is, in the law of England and Wales, an interest in real property that is or may become possessory. It is a type of personal property and encompasses land ownership, rental and other arrangements that give people the right to us ...
held by the original party (strict vertical privity of estate). Note that because strict vertical privity is required for a burden to run, a lessee could not have a burden enforced against them. However, a benefited party could sue the owner of the reversion of the estate, and the owner could possibly sue the lessee for
waste
Waste (or wastes) are unwanted or unusable materials. Waste is any substance discarded after primary use, or is worthless, defective and of no use. A by-product, by contrast is a joint product of relatively minor economic value. A waste prod ...
.
Enforcement and modification
Courts interpret covenants relatively strictly and give the words of the agreement their ordinary meaning. Generally if there is any unclear or ambiguous language regarding the existence of a covenant courts will favor free alienation of the property. Courts will not read any restrictions on the land by implication (as is done with easements for example). A covenant can be terminated if the original purpose of the covenant is lost. In some cases property owners can petition a court to remove or modify the covenants, and
homeowner associations may include procedures for removing the covenants.
The covenant may be negative or affirmative. A negative covenant is one in which property owners are unable to perform a specific activity, such as block a scenic view. An affirmative covenant is one in which property owners must actively perform a specific activity, such as keeping the lawn tidy or paying homeowner's association dues for the upkeep of the surrounding area.
An agreement not to open a competing business on adjacent property is generally enforceable as a covenant running with the land. However, under the federal
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
's holding in ''
Shelley v. Kraemer'', 334
U.S.
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
1 (1948), a covenant that restricts sale to a minority person (commonly used during the
Jim Crow era
The Jim Crow laws were state and local laws enforcing racial segregation in the Southern United States. Other areas of the United States were affected by formal and informal policies of segregation as well, but many states outside the So ...
) is unenforceable, as enforcement would require the court to act in a racially discriminatory manner, contrary to the
Equal Protection Clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the
Fourteenth Amendment.
England and Wales
At common law, the benefit of a restrictive covenant runs with the land if three conditions are met:
* The covenant must not be personal in nature - it must benefit the land rather than an individual
* The covenant must 'touch and concern' the land - it must affect how the land is used or the value of the land
* The benefited land must be identifiable.
At common law, the burden of a restrictive covenant does not run except where strict privity of estate (a landlord/tenant relationship) exists.
The burden can be enforced at law in limited circumstances under the benefit/burden test - that is, whoever takes the benefit must also shoulder the burden. In ''Halsall v Brizell''
957Ch 169, a covenant requiring the upkeep of roads was found to bind the successor in title to the original covenantor because he had elected to take the benefit. The rule in ''
Halsall v Brizell
''Halsall v Brizell'' 957Ch 169 is an English land law case, concerning the enforceability of a positive covenant, that is required positive obligations, in this case the obligation to pay money for upkeep and repair.
Facts
Homebuyers on a Liver ...
'' is limited to cases where the benefit can be linked to a specific burden and where the covenantor's successors in title can physically elect to take the benefit. For example, a restrictive covenant to contribute to the maintenance costs of a common area will not be binding if the covenantor's successors in title have no legal right to use them.
A positive burden can run in law, but not in equity, as it is deemed to be analogous to a contract, to which equitable principles do not apply (''
Rhone v Stephens
is an English land law case, at the court of final appeal level, concerning the succession to the burden of positive covenants in freehold land within which it is of relatively broad application. It is distinguished in cases of regular paymen ...
'' (1994)).
The burden of a restrictive covenant will run in equity if these prerequisites are met:
* The burden cannot be a positive burden (that is, it requires expenditure to meet it);
* The purchaser must have notice of the covenant
* The covenant must benefit the covenantee's land
* The covenant must be intended to run with the covenantor's land.
The leading case of restrictive covenants in equity is generally regarded as that of
Tulk v Moxhay in which it was determined that the burden could run in equity subject to the qualifications listed above.
In planned communities
In contemporary practice in the United States, a covenant typically refers to restrictions set on contracts like deeds of sale. "Covenants, conditions, and restrictions," commonly abbreviated "CC&Rs" or "CCRs", are a complicated system of
covenants, known generically as "deed restrictions," built into the
deed
In common law, a deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring ...
s of all the lots in a common interest development, particularly in the tens of millions of American homes governed by a
homeowner association (HOA) or
condominium association. There are some office or industrial parks subject to CCRs as well.
These CCRs might, for example, dictate the types of structures that can be built (e.g. a CCR may prohibit any type of modular, prefabricated, or mobile home, and/or may require the structure to be a minimum size), appearance (e.g. no junk cars), or other uses (e.g. no operation of home-based business, no pets except traditional household animals). The purpose of this is to maintain a neighborhood character or prevent improper use of the land. Many covenants of this nature were imposed in the United States in the 1920s through the 1940s, before
zoning
Zoning is a method of urban planning in which a municipality or other tier of government divides land into areas called zones, each of which has a set of regulations for new development that differs from other zones. Zones may be defined for a si ...
became widespread. However, many modern developments are also restricted by covenants on property titles; this is often justified as a means of preserving the values of the houses in the area. Covenant restrictions can be removed through court action, although this process is lengthy and often very expensive. In some cases it even involves a
plebiscite
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
of nearby property owners. Although control of such
planning issues is often governed by local planning schemes or other regulatory frameworks rather than through the use of covenants, there are still many covenants imposed, particularly in states that limit the level of control over real property use that may be exercised by local governments.
Exclusionary covenants
Covenants have been used to exclude certain classes based on race, religion or ethnicity. These groups are generally marginalized groups.
United States
![Racial deed restriction](https://upload.wikimedia.org/wikipedia/commons/e/ea/Racial_deed_restriction.gif)
In the United States, deed restrictions and restrictive covenants became an important instrument for enforcing
racial segregation
Racial segregation is the systematic separation of people into race (human classification), racial or other Ethnicity, ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crimes against hum ...
in most towns and cities, becoming widespread in the 1920s and proliferating until they were declared unenforceable in 1948
in the Supreme Court case ''
Shelley v. Kraemer''. They prohibited a buyer of
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
from allowing use or occupancy by members of a given race, ethnic origin, and/or religion as specified in the
title deed
A title is one or more words used before or after a person's name, in certain contexts. It may signify either generation, an official position, or a professional or academic qualification. In some languages, titles may be inserted between the f ...
. Such covenants were employed by many
real estate developers
Real estate development, or property development, is a business process, encompassing activities that range from the renovation and re-lease of existing buildings to the purchase of raw land and the sale of developed land or parcels to others. R ...
to "protect" entire
subdivisions
Subdivision may refer to:
Arts and entertainment
* Subdivision (metre), in music
* ''Subdivision'' (film), 2009
* "Subdivision", an episode of ''Prison Break'' (season 2)
* ''Subdivisions'' (EP), by Sinch, 2005
* "Subdivisions" (song), by Rush ...
, with the primary intent to keep "
white
White is the lightest color and is achromatic (having no hue). It is the color of objects such as snow, chalk, and milk, and is the opposite of black. White objects fully reflect and scatter all the visible wavelengths of light. White on ...
" neighbourhoods "white". Ninety percent of the
housing projects built in the years following World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
were racially restricted by such covenants. Cities known for their widespread use of racial covenants include
Chicago
(''City in a Garden''); I Will
, image_map =
, map_caption = Interactive Map of Chicago
, coordinates =
, coordinates_footnotes =
, subdivision_type = Country
, subdivision_name ...
,
Baltimore
Baltimore ( , locally: or ) is the List of municipalities in Maryland, most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic (United States), Mid-Atlantic, and List of United States cities by popula ...
,
Detroit
Detroit ( , ; , ) is the largest city in the U.S. state of Michigan. It is also the largest U.S. city on the United States–Canada border, and the seat of government of Wayne County. The City of Detroit had a population of 639,111 at th ...
,
Milwaukee
Milwaukee ( ), officially the City of Milwaukee, is both the most populous and most densely populated city in the U.S. state of Wisconsin and the county seat of Milwaukee County. With a population of 577,222 at the 2020 census, Milwaukee is ...
,
Los Angeles
Los Angeles ( ; es, Los Ángeles, link=no , ), often referred to by its initials L.A., is the largest city in the state of California and the second most populous city in the United States after New York City, as well as one of the world' ...
,
Seattle
Seattle ( ) is a seaport city on the West Coast of the United States. It is the seat of King County, Washington. With a 2020 population of 737,015, it is the largest city in both the state of Washington and the Pacific Northwest regio ...
, and
St. Louis
St. Louis () is the second-largest city in Missouri, United States. It sits near the confluence of the Mississippi and the Missouri Rivers. In 2020, the city proper had a population of 301,578, while the bi-state metropolitan area, which e ...
.
Often the restrictions applied only to African Americans wishing to buy property or rent a house or apartment, but other populations might also be banned, such as
Asians,
Jews
Jews ( he, יְהוּדִים, , ) or Jewish people are an ethnoreligious group and nation originating from the Israelites Israelite origins and kingdom: "The first act in the long drama of Jewish history is the age of the Israelites""The ...
,
Indians, and some
Latinos
Hispanic and Latino Americans ( es, Estadounidenses hispanos y latinos; pt, Estadunidenses hispânicos e latinos) are Americans of Spaniards, Spanish and/or Latin Americans, Latin American ancestry. More broadly, these demographics include a ...
. For example, a restrictive covenant covering a large neighborhood in Seattle declared that "no part of said property hereby conveyed shall ever be used or occupied by any Hebrew or by any person of the Ethiopian, Malay or any Asiatic Race", thus banning Jews and anyone of African, Filipino, or Asian ancestry. The exclusionary language varied widely. Some neighborhoods were reserved for the "White or Caucasian race". Others enumerated banned populations. One subdivision near Seattle specified that "This property shall not be resold, leased, rented or occupied except to or by persons of the Aryan race." The Lake Shore Club District in
Pennsylvania
Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
sought to exclude various minorities, including "
Negroes
In the English language, ''negro'' is a term historically used to denote persons considered to be of Black African heritage. The word ''negro'' means the color black in both Spanish and in Portuguese, where English took it from. The term can be ...
", "
Mongolians
The Mongols ( mn, Монголчууд, , , ; ; russian: Монголы) are an East Asian ethnic group native to Mongolia, Inner Mongolia in China and the Buryatia Republic of the Russian Federation. The Mongols are the principal member of ...
",
Hungarians
Hungarians, also known as Magyars ( ; hu, magyarok ), are a nation and ethnic group native to Hungary () and historical Hungarian lands who share a common culture, history, ancestry, and language. The Hungarian language belongs to the Urali ...
,
Mexicans
Mexicans ( es, mexicanos) are the citizens of the United Mexican States.
The most spoken language by Mexicans is Spanish language, Spanish, but some may also speak languages from 68 different Languages of Mexico, Indigenous linguistic groups ...
,
Greeks
The Greeks or Hellenes (; el, Έλληνες, ''Éllines'' ) are an ethnic group and nation indigenous to the Eastern Mediterranean and the Black Sea regions, namely Greece, Cyprus, Albania, Italy, Turkey, Egypt, and, to a lesser extent, oth ...
, and various other European ethnicities.
Some covenants, such as those tied to properties in
Forest Hills Gardens
Forest Hills is a mostly residential neighborhood in the central portion of the borough of Queens in New York City. It is adjacent to Corona to the north, Rego Park and Glendale to the west, Forest Park to the south, Kew Gardens to the southeast ...
,
New York, also sought to exclude
working class
The working class (or labouring class) comprises those engaged in manual-labour occupations or industrial work, who are remunerated via waged or salaried contracts. Working-class occupations (see also " Designation of workers by collar colou ...
people; however this type of
social segregation
Geographical segregation exists whenever the proportions of population rates of two or more populations are not homogenous throughout a defined space. Populations can be considered any plant or animal species, human genders, followers of a certain ...
was more commonly achieved through the use of high property prices, minimum cost requirements, and application reference checks.
[Fogelson, Robert M. (2005). ''Bourgeois Nightmares: Suburbia 1870–1930''. New Haven: Yale University Press.]
=History
=
Racial covenants emerged during the mid-19th century and started to gain prominence from the 1890s onwards. It was not until the 1920s that they gained widespread national significance, and continued to spread through the 1940s. Racial covenants were an alternative to racially restrictive
zoning
Zoning is a method of urban planning in which a municipality or other tier of government divides land into areas called zones, each of which has a set of regulations for new development that differs from other zones. Zones may be defined for a si ...
ordinances (
residential segregation
Residential segregation in the United States is the physical separation of two or more groups into different neighborhoods—a form of segregation that "sorts population groups into various neighborhood contexts and shapes the living environment a ...
based on race), which the 1917
US Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
ruling of ''
Buchanan v. Warley
''Buchanan v. Warley'', 245 U.S. 60 (1917), is a case in which the Supreme Court of the United States addressed civil government-instituted racial segregation in residential areas. The Court held unanimously that a Louisville, Kentucky city ordin ...
'' invalidated on constitutional grounds.
[Meyer, Stephen G. (2000). ''As long as they don't move next door: segregation and racial conflict in American neighborhoods''. Lanham: Rowman & Littlefield.]
During the 1920s, the
National Association for the Advancement of Colored People
The National Association for the Advancement of Colored People (NAACP) is a civil rights organization in the United States, formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E. ...
(NAACP) sponsored several unsuccessful legal challenges against racial covenants. In a blow to campaigners against
racial segregation
Racial segregation is the systematic separation of people into race (human classification), racial or other Ethnicity, ethnic groups in daily life. Racial segregation can amount to the international crime of apartheid and a crimes against hum ...
, the legality of racial restrictive covenants was affirmed by the landmark ''
Corrigan v. Buckley'' judgment ruling that such clauses constituted "private action" not subject to the
Due Process Clause
In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
of the
Fourteenth Amendment.
[ This cleared the way for racial restrictive covenants to proliferate across the US during the 1920s and 1930s.
Even the invalidation of such a covenant by the US Supreme Court in the 1940 case of '']Hansberry v. Lee __NOTOC__
''Hansberry v. Lee'', 311 U.S. 32 (1940), is a famous and commonly-used case in civil procedure classes for teaching that ''res judicata'' does not apply to an individual whose interests were not adequately represented in a prior class ac ...
'' did little to reverse the trend, because the ruling was based on a technicality
The term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition. It implies that strict adherence to the ...
and failed to set a legal precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
.[ It was not until 1948 that the '' Shelley v. Kraemer'' judgment overturned the ''Corrigan v. Buckley'' decision, stating that exclusionary covenants were unconstitutional under the Fourteenth Amendment and were therefore legally unenforceable.][
Some commentators have attributed the popularity of exclusionary covenants at this time as a response to the ]urbanization
Urbanization (or urbanisation) refers to the population shift from rural to urban areas, the corresponding decrease in the proportion of people living in rural areas, and the ways in which societies adapt to this change. It is predominantly t ...
of black Americans following World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...
, and the fear of "black invasion" into white neighborhoods, which residents felt would result in depressed property prices, increased nuisance (crime), and social instability.[ Many African Americans openly defied these covenants and attempted to "pioneer" restricted areas.
In 1968, Congress passed the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) which outlawed housing discrimination based on race, color, religion, sex, or national origin. In 1988, it was expanded to prohibit discrimination based on familial status (e.g. the presence of children) or disability.
]
Persistence of exclusionary covenants
Although exclusionary covenants are not enforceable today, they still exist in many original property deeds as "underlying documents", and title insurance
Title insurance is a form of indemnity insurance predominantly found in the United States and Canada which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike ...
policies often contain exclusions preventing coverage of such restrictions. It is not always easy to remove them from the chain of title. Since 2010, the Seattle Civil Rights & Labor History Project has located more than 500 restrictive covenants and deeds covering more than 20,000 properties in Seattle
Seattle ( ) is a seaport city on the West Coast of the United States. It is the seat of King County, Washington. With a 2020 population of 737,015, it is the largest city in both the state of Washington and the Pacific Northwest regio ...
and its suburbs. In response, the Washington State legislature passed a law that since January 1, 2019 allows property owners to "modify" property records, disavowing the offensive restriction. Mapping Inequality, a collaboration of three teams at four universities, has identified restrictive covenants in various parts of the United States. The Mapping Prejudice project at the University of Minnesota has collected restrictive covenants in the Minneapolis area.
=Examples in U.S.
=
* Forest Hills Gardens
Forest Hills is a mostly residential neighborhood in the central portion of the borough of Queens in New York City. It is adjacent to Corona to the north, Rego Park and Glendale to the west, Forest Park to the south, Kew Gardens to the southeast ...
, Queens, New York – covenants forbade the sale of real property to black, Jewish, and working-class people.
* Jackson Heights, Queens, New York – covenants employed to restrict occupancy to white, non-immigrant Protestants.
* Washington Park Subdivision
The Washington Park Subdivision is the name of the historic 3- city block by 4-city block subdivision in the northwest corner of the Woodlawn community area, on the South Side of Chicago in Illinois that stands in the place of the original ...
, Chicago, Illinois – restrictive covenants used to exclude African Americans.
* Palos Verdes Estates
Palos Verdes Estates (''Palos Verdes'', Spanish for "Green Sticks") is a city in Los Angeles County, California, United States, situated on the Palos Verdes Peninsula. The city was master-planned by the noted American landscape architect and ...
, Los Angeles, California – covenants forbade an owner to sell or rent a house to anyone not of the white or Caucasian race ''or'' to permit African Americans on their property with the exception of chauffeurs, gardeners, and domestic servants.[
* ]Upper Arlington, Ohio
Upper Arlington, often known by its initials U.A., is a city in Franklin County, Ohio, United States, on the northwest side of the Columbus metropolitan area. The Old Arlington neighborhood is listed on the National Register of Historic Places. ...
– covenants forbade the sale of real property to blacks or Jews, but allowed for colored servants to reside in the homes in which they served.
* Guilford, Baltimore
Guilford is a prominent and historic neighborhood located in the northern part of Baltimore, Maryland. It is bounded on the south by University Parkway, on the west by North Charles Street, Warrenton and Linkwood Roads, on the north by Cold Spri ...
, Maryland – covenants provided for exclusion against negros or persons of negro extraction.[
* ]Williamstown, Massachusetts
Williamstown is a town in the northern part of Berkshire County, in the northwest corner of Massachusetts, United States. It shares a border with Vermont to the north and New York to the west. It is part of the Pittsfield, Massachusetts Metropolit ...
, in 1939 prohibited any non-white not in domestic service from living in the town.
* Kansas City metropolitan area
The Kansas City metropolitan area is a bi-state metropolitan area anchored by Kansas City, Missouri. Its 14 counties straddle the border between the U.S. states of Missouri (9 counties) and Kansas (5 counties). With and a population of more th ...
(examples include Country Club
A country club is a privately owned club, often with a membership quota and admittance by invitation or sponsorship, that generally offers both a variety of recreational sports and facilities for dining and entertaining. Typical athletic offer ...
and Johnson County) – restrictive covenants used to exclude African American and "Semitic" persons.
=Examples outside U.S.
=
Although most commonly associated with the United States, racially or ethnically restrictive covenants have been used in other countries:
* Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
– Subdivisions such as Westdale, Ontario Westdale is a residential neighbourhood in Hamilton, Ontario, Canada. It is centred in the Westdale Village shopping district and located near McMaster University. It is bordered to the north by Cootes Paradise, an extensive nature reserve marking ...
employed racial covenants to bar a diverse array of ethnic groups, such as Armenians and foreign-born Italians and Jews.[ Opposition to exclusionary covenants was significant in Canada, culminating in the 1945 '']Re Drummond Wren
''Re Drummond Wren'' 945O.R. 778 (Ont. H.C.) is a decision by the Ontario High Court, presided by Justice Mackay, regarding the validity of a racially motivated restrictive covenant. The Workers' Educational Association purchased the lot in East ...
'' ruling by the Ontario High Court which invalidated their use. This judgment was influential in guiding similar decisions in the United States and elsewhere.
* France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
– During World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, under the Vichy regime
Vichy France (french: Régime de Vichy; 10 July 1940 – 9 August 1944), officially the French State ('), was the fascist French state headed by Marshal Philippe Pétain during World War II. Officially independent, but with half of its ter ...
in the Free Zone outside the Nazi occupied area, some condominiums inserted clauses forbidding selling to Jews.
* South Africa
South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring countri ...
– racial covenants emerged in Natal
NATAL or Natal may refer to:
Places
* Natal, Rio Grande do Norte, a city in Brazil
* Natal, South Africa (disambiguation), a region in South Africa
** Natalia Republic, a former country (1839–1843)
** Colony of Natal, a former British colony ( ...
during the 1890s as an attempt to prevent Indians from acquiring properties in more expensive areas, and were commonplace across the country by the 1930s. They were later used as a tool to further the cause of apartheid
Apartheid (, especially South African English: , ; , "aparthood") was a system of institutionalised racial segregation that existed in South Africa and South West Africa (now Namibia) from 1948 to the early 1990s. Apartheid was ...
against the black population.
* Zimbabwe
Zimbabwe (), officially the Republic of Zimbabwe, is a landlocked country located in Southeast Africa, between the Zambezi and Limpopo Rivers, bordered by South Africa to the south, Botswana to the south-west, Zambia to the north, and Mozam ...
– Asians and coloured people
Coloureds ( af, Kleurlinge or , ) refers to members of multiracial ethnic communities in Southern Africa who may have ancestry from more than one of the various populations inhabiting the region, including African, European, and Asian. South ...
were excluded from purchasing or occupying homes in European areas by restrictive racial covenants written into most title deeds.
Title covenants
Title covenants serve as guarantees to the recipient of property, ensuring that the recipient receives what he or she bargained for.
;Outside of England and Wales
Outside of England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
the English covenants of title, sometimes included in deeds to real property, are (1) that the grantor is lawfully seized (in fee simple) of the property, (2) that the grantor has the right to convey the property to the grantee, (3) that the property is conveyed without encumbrances (this covenant is frequently modified to allow for certain encumbrances), (4) that the grantor has done no act to encumber the property, (5) that the grantee shall have quiet possession
Quiet may refer to:
* Silence, a relative or total lack of sound
In music
* The Quiett (born 1985), South Korean rapper
* ''Quiet'' (album), a 1996 John Scofield album
* "Quiet", a song by Lights, from her album '' The Listening'' (2009)
* "Qui ...
of the property, and (6) that the grantor will execute such further assurances of the land as may be requisite (Nos. 3 and 4, which overlap significantly, are sometimes treated as one item). The English covenants may be described individually, or they may be incorporated by reference, as in a deed granting property "with general warranty and English covenants of title...
;In England and Wales
Since 1989 the main covenants implied in England and Wales, on "limited" or "full title guarantee" are, (unless expressly overridden):
#that the person making the disposition has the right (with the concurrence of any other person conveying the property) to dispose of the property as he purports to, and
#that that person will at his own cost do all that he reasonably can to give the person to whom he disposes of the property the title he purports to give.
#n the case of a disposition of an existing legal interest
N, or n, is the fourteenth letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''en'' (pronounced ), plural ''ens''.
History
...
(a) where the title to the interest is registered, it shall be presumed that the disposition is of the whole of that interest; (b) # f involving a lease(a) that the lease is subsisting at the time of the disposition, and
::(b) that there is no subsisting breach of a condition or tenant’s obligation, and nothing which at that time would render the lease liable to forfeiture.
Others as to charges, incumbrances, and third-party rights vary depending on whether full or limited title guarantee is agreed.[Law of Property (Miscellaneous Provisions) Act 1994 section 3]
See also
* Private transfer fee
Footnotes
Further reading
* Richard R.W. Brooks and Carol M. Rose Carol M. Rose is the Ashby Lohse Chair in Water and Natural Resources at the University of Arizona James E. Rogers College of Law and was previously the Gordon Bradford Tweedy Professor of Law and Organization at Yale Law School.
Rose graduated fro ...
, ''Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms.'' Cambridge, MA: Harvard University Press, 2013.
* Jeffrey D. Gonda, ''Unjust Deeds: The Restrictive Covenant Cases and the Making of the Civil Rights Movement.'' Chapel Hill, NC: North Carolina Press, 2015.
* Clement E. Vose, ''Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases.'' Berkeley, CA: University of California Press, 1967.
*
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Property law
Racism in the United States
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Anti-black racism in the United States
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