Is there a racist clause hiding in that real estate paperwork?

Anne Wallace Allen//May 18, 2018

Is there a racist clause hiding in that real estate paperwork?

Anne Wallace Allen//May 18, 2018

If you own a home in a subdivision that was created in the 1940s and 1950s, you might want to take another look at the paperwork that was attached to your deed.

Some of the restrictive covenants that govern what homeowners can do with their property in mid-century subdivisions still contain startlingly racist language, now illegal, spelling out the prejudice that was a fact of life a half-century ago.

“No persons of any race other than the white race shall occupy or use any building or any lot except that this covenant shall not prevent occupancies by domestic service of a different race domiciled with an owner or tenant.”

That’s the language that was written into the CC&Rs of one Boise subdivision in 1945 and affirmed by a majority of the homeowners association, or HOA, members in 1973.

The language is boilerplate found in covenants, or CC&Rs, all over Ada County and elsewhere in the nation, say real estate agents and title company employees who run across it in the course of their work. The exclusion is not only offensive; it has also been illegal for many decades. There’s a large body of research on these covenants that shows they became illegal with a 1948 U.S. Supreme Court decision called Shelley v. Kraemer, long before the better-known Fair Housing Act of 1968. But as the CC&Rs themselves show, the racist language continued to be written into new deeds after 1948, and it is still hanging around today.

One reason is that it’s difficult to amend CC&Rs. While many have tried, few have succeeded. Amending a restrictive covenant requires a majority vote of subdivision homeowners, from 51 percent to 90 percent depending on the language of the covenant. Over the last 60 or 70 years, these subdivisions aren’t necessarily having HOA meetings at all, much less getting a majority together to make decisions.

“It’s not necessarily that people don’t want to amend it,” said Brindee Collins, a lawyer at Vail Fotheringham in Boise who specializes in HOA law. “It’s just an apathy issue. If you have 400 people in the subdivision, and you have to get 300 votes, you’re going to have a difficult time. Especially if you have to have a meeting, because people just aren’t going to come to a meeting.”

In a case she knew of, Collins said, an HOA tried to amend the CC&R, couldn’t get the votes and had a lawyer help them adopt a resolution that the provision wasn’t enforceable.

It was clear to me as I gathered information for this column that questions about housing discrimination alarm some people. A local title company I approached sent my questions to the corporate office, which responded several days later with terse instructions to, “Please contact the Ada County Clerk Auditor Recorder for questions about making changes to recorded documents.”

Zoe Ann Olson, a housing lawyer with the Intermountain Fair Housing Council, said she has fielded calls about the issue for years, often from people who discover the racist language and want advice on changing it. She noted that the National Association of Realtors last year dedicated an exhibit at the Smithsonian celebrating the 50th anniversary of the 1968 Fair Housing Act.

“Boise Regional Realtors has been very supportive of fair housing,” Olson said. “The realtors who have talked to me have been shocked by it.”

What to do? Alicia Ralston, a Boise real estate agent, hopes publicizing the existence of the language will motivate homeowners to dig out their CC&Rs, check them for the discriminatory language and, if they find it, join forces to have it removed.

“It’s sad and disappointing that we have not found a way to terminate or redact this language in CC&Rs,” Ralston said.

This conversation reminds me of the furor over war memorials and other monuments that gripped the nation last year. I thought the memorials should stay where they were. Presented thoughtfully, they have enormous educational value.

But the CC&Rs are different, hidden away as they are in everyday legal documents. Yes, the discrimination is illegal anyway, but removing the language is much more than symbolic. The Treasure Valley is undergoing an historic transformation now, a period of economic growth and prosperity that is drawing in people of many races and nationalities. Boise is working overtime to show itself to be the inclusive and welcoming place that it genuinely is.

Given that we know this state to be inclusive and welcoming, do we really want a home purchaser who actually reads the fine print to discover that the CC&R states his or her prospective neighborhood is open to white people only? This language belongs more properly in a museum or exhibit that can be used to show the world how far we have come. Why shouldn’t Boise be the first community in the country to unite and remove the racist language? Ralston and others I have talked to said they would be willing to donate time and money to this effort.

Olson thinks the language, illegal as it is, probably deters some people from buying houses where it is present. For her, homeownership is more than a piece of the personal financial picture; it’s a fundamental right and a goal for any just society. She thinks a partnership of realtors, lenders, insurers and title companies could excise the language from the CC&Rs.

“We need educational outreach to get these eliminated from CC&Rs,” she said. “It’s possible.”

Anne Wallace Allen is editor of the Idaho Business Review.