FELIKS BANEL

Project aims to daylight ‘restrictive covenants’ on real estate in all Washington counties

Dec 8, 2021, 11:08 AM | Updated: Dec 9, 2021, 8:16 am
Restrictive covenants...
Restrictive covenants with racist language are commonplace on deeds and other real estate document from middle of the 20th century; this example is from Chelan County, Washington. (Courtesy Logan Camporeale)
(Courtesy Logan Camporeale)

So-called “restrictive covenants,” forbidding the sale or rental of real estate to people based on their race or ethnicity, were commonplace in the middle of the 20th century, and many current real estate documents still contain this old racist language. A new state law aims to give property owners a means of removing the language, and to fund statewide research to identify offensive documents where they still exist in all of Washington’s 39 counties.

The state legislature passed a new law earlier this year to address the presence of restrictive racist covenants on property deeds in Washington state, and give property owners and residents options for legally removing the language from their deeds. It passed with strong bipartisan support.

“The legislature finds that striking racist, religious, and ethnic restrictions or covenants from the chain of title is no different than having an offensive statuary monument which the owner may entirely remove,” the bill reads. “So, too, should the owner be able to entirely remove the offensive written monument to racism or other unconstitutional discrimination.”

In case the idea of a “restrictive covenant” seems abstract, this language appears to equate the words of the covenant, which often restrict ownership of a specific house to whites only, or forbid specific racial groups from ownership – with a controversial or “offensive” statute – calling the legal clauses “offensive written monument[s].”

In a less metaphorical sense, the bill also provides funding for the University of Washington in Seattle and Eastern Washington University in Cheney to work directly with each county in their part of the state to identify all the deeds that contain this language, and to then notify the property owners or tenants.

Work to address this dark chapter in history has been pioneered here in Washington by Dr. Jim Gregory at the UW, and his work has really spread the word and educated the public on this side of the mountains. This new law builds on Gregory’s work, and makes it a statewide effort.

Logan Camporeale works for the City of Spokane’s historic preservation office, and is serving as a consultant for the project on the east side of the mountains. He’s also the author of a blog called The Local History, and has extensively researched and written about restrictive covenants in the Spokane area.

Camporeale told KIRO Radio that covenants in real estate documents weren’t originally created as a means of excluding people based on race, but then the U. S.Supreme Court weighed in on a segregation case a little more than a hundred years ago.

“At first, they generally, as far as we know, weren’t used for racist things, but were more used for other sorts of concerns like whether or not you could have a garage or something like that, or how large your house could be, how quickly you needed to build it – all these sorts of things,” Camporeale said. “But when ordinances that segregated cities were outlawed in a 1917 Supreme Court decision, property developers looked to a new tool, one that they already had in their pocket – restrictive covenants — and they started adding that racist language to them.”

Larry Cebula is a professor of history at Eastern Washington University (EWU), and also the assistant digital archivist for the Washington State Archives. He’s overseeing the research project for EWU, which will examine the records in 20 Washington counties on the east side of the mountains.

Cebula told KIRO Radio that restrictive racist covenants were used all over the United States to subtly, yet effectively perpetuate segregated neighborhoods – this wasn’t just an Evergreen State thing. And, while it’s been known for some time now how prevalent these covenants are on the west side of the Cascades, it turns out they’re not exactly rare in Eastern Washington.

“We are finding them throughout the eastern part of the state,” Cebula said. “We are not finding them everywhere – basically, it’s in places where neighborhoods were platted in a certain time period, … 1920 to 1960 seems to be the heyday of these.”

“When a neighborhood was platted in that era,” Cebula continued, “it was fairly common for such a covenant to be involved, and a neighborhood needn’t be 10 square blocks, it could be a handful of city lots. But we have found them, so far, in places like Pullman, and Wenatchee, and Ritzville – they’re pretty widespread.”

“We’ve also found some counties where they don’t seem to exist,” he added, “but I don’t want to quite say that as a certainty yet.”

The two counties where no covenants have been discovered yet are Lincoln and Pend Oreille. Larry Cebula says it’s too early to say anything conclusive as to why, but the absence in those counties could be a matter of the timing of when development took place – if it was before the 1920s or after the 1950s.

And while the past few years of social unrest and activism have been something like a reckoning – or perhaps the prelude to such a thing – when it comes to race in America, the reality is that these restrictive covenants have actually been technically unenforceable since a U.S. Supreme Court ruling in 1948.

Regardless of their apparent legal toothlessness, Camporeale believes the new state law creating a process for removal of what’s essentially symbolic language is a worthwhile pursuit in 2021.

However, Camporeale points out that the main objective of the research project is to work with each county to identify the all the deeds in the public record that have restrictive racist covenants. Any actual removal of the language – or modification of the document – would be up to the individual property owner or resident to pursue.

“Having one of these restrictive covenants on your individual property – just imagine yourself as an individual, having a covenant that says you or people that look like you are unable to live there,” Camporeale explained. “It seems pretty obvious how that could impact your ability to freely enjoy your property, and you should have some remedy in order to address that.”

Camporeale says he’s “not necessarily advocating for a full-scale removal of these, but also recognizing that property owners should have a remedy to address it on their own individual property should they choose.”

The presence of the racial exclusion language was often fairly covert – though there are examples of newspaper ads for real estate from places such as Olympia that mention “White or Caucasian” owners or renters as a selling point – but, say Camporeale and Cebula, most people who own or live in homes nowadays with the language still present on the property’s deed likely have no idea it’s there. However, for decades, the existence of the covenants did provide what might be considered a subtle — or, not so subtle — means of deterring people of color from even trying to rent or buy in certain neighborhoods or communities.

One further wrinkle in all of this is a legal case working its way through the Washington State Supreme Court. Before the new law was created, a Spokane homeowner sued Spokane County to force the local government to remove the covenant from the deed for their home. The court decision will likely have some impact on full implementation of the state law when it comes to the actual mechanism of removing the language from a deed, or, at the very least, addressing its presence in some way.

This is a little complicated, but the law, as written, provides for two different “remedies” – one is to completely remove the offensive language, while the other involves the addition of new language to, essentially, contextualize and formally nullify the covenant, and also warn of its presence.

To hear Larry Cebula and Logan Camporeale tell it, this is tricky business, because no archivist or historian wants to condone “erasing history” or simply removing troubling content from the official record, but most do understand if a property owner wishes to somehow cleanse the paperwork for their property – to tear down the “written monument,” as it were.

“Larry’s described it in some ways that we’re going to remove these from one folder and put them in another folder – in the sense that we’re trying to offer a remedy that would allow these [restrictive covenants] to not be part of the ‘public square’ of documents, … and [instead] relocate them in an archival setting, like the Washington State Archives,” Camporeale said. “We’re not necessarily whitewashing or still providing access to those materials, we’re just taking them out of the daily interaction where they currently reside.”

Even though the restrictive covenants are more symbolic than anything else, Larry Cebula says the fact that they were still being added to deeds after the Supreme Court ruling in 1948 is worth noting.

“Why do people keep adding them after they’re unenforceable?” Cebula asked, saying he’s found examples from as late as 1955. “Because they sent a message. They had a function, even when they were not legally enforceable – and to some extent, they still may have that function. And that’s why they need to go.”

Further complicating the discussion, says Camporeale, is that restrictive covenants are also apparently still not really technically illegal.

“In the Supreme Court argument, one of the justices asked the counsel for the county is if somebody would be allowed to file one of these documents today,” Camporeale said. “And the counsel’s answer, in less words was, ‘Yes, it’s not our job as the county auditor to be reviewing documents and determining if they’re racist or not.’”

“So I’m not sure that some other mechanism would stop you, but at least based on the oral arguments at the Supreme Court, nothing is stopping you from filing restrictive covenants today that have racist provisions,” Camporeale said, like some people were doing in Washington as recently as 1955.

Research based at the University of Washington and Eastern Washington University is funded for two years, and most of the work will be done by students. The final product will likely be a statewide website for homeowners and renters to easily research specific properties, and then, if so desired, begin the process to remove or change the language of the restrictive covenant.

A decision from the state Supreme Court on the Spokane case is expected sometime in early 2022.

You can hear Feliks every Wednesday and Friday morning on Seattle’s Morning News, read more from him here, and subscribe to The Resident Historian Podcast here. If you have a story idea, please email Feliks here.

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Project aims to daylight ‘restrictive covenants’ on real estate in all Washington counties