community buildersCommunity Builders on the Front Line

Issue 5   

CB Cheryl Appline

California Governor Grey Davis signing into law legislation banning Restrictive Covenants.


Eradicating Restricitve Covenants

Imagine the thrill of a first time homebuyer when they purchase their own home – a place that represents stability and comfort.  Now, imagine the feeling of shame they would feel if they read the following words in their property title documents: "No person of African, Japanese, Chinese, or of any Mongolian descent shall be allowed to purchase, own, or lease said real property, or any part thereof, or to occupy, except as servants . . ." 

Sadly, it was not unusual for California residents to be confronted with this type of language when purchasing a new home.  Even more disturbing, homeowners were often met with resistance when they attempted to remove these provisions from declarations governing their property – even though race restrictive covenants are no longer legally enforceable. 

As of January 1, 2000, however, new California law ( prohibits the existence of any covenant that violates fair housing law in documents governing real property.  "With the passage of this law, the State of California becomes a truly more honest and fair place for everyone who makes a home here," declared Art Agnos, Secretary Representative for the Pacific/Hawaii region of HUD.

"The existence of these kinds of covenants has a chilling effect on prospective buyers or renters in a community," said George D. Williams, former director of HUD’s Pacific/Hawaii office of Fair Housing and Equal Opportunity.  "If you’re a minority . . . you’re not going to feel particularly comfortable moving there."

Professor Mark Blank wondered why there weren’t enough minorities in his middle class San Francisco subdivision.  Then, shortly after moving into his home, he discovered that a racially restrictive covenant governed every home in his subdivision tract.  The clause stated that "No person other than one of the White Caucasian Race shall rent, lease, use or occupy any building on any lot in said Tract, except" for nonwhite, domestic servants employed by either an owner or tenant.

"The clause is so absolutely vile," said Blank who is a white Vietnam veteran and describes himself as a "product of the civil rights movement."  "I was offended. . . First I tried to convince myself it was something [the homeowner’s association] put in 60 years ago and never got around to changing." 

Blank spent three unsuccessful years trying to get the association board members to remove the covenant.  "Then I realized it’s intentional," stated Blank.  Finally, Blank filed a fair housing complaint with HUD in 1998.  After protracted negotiations and HUD involvement, the homeowner’s association eventually agreed to amend its declaration to eliminate the offensive provision.

At the same time, and responding to the growing number of fair housing complaints and the surmounting media attention regarding race restrictive covenants, San Francisco Community Builders decided to take proactive steps to eliminate the covenants.  Lynn Martinez and May Jaber examined numerous title records and researched historical and legal implications, discovering that race-based covenants still exist in many documents that govern housing subdivisions built during the 1930-40s.  "Although the law declared race restrictive covenants to be invalid and unenforceable, no law expressly prohibits, or seeks to correct, the existence of race restrictive covenants," said Martinez.  "As a result, declarations that contain these offensive provisions are regularly disseminated to the public by title and escrow companies, county recorders, homeowners associations and real estate practitioners.  In fact, since these declarations tend to exist in older "starter home" neighborhoods, they are disseminated to, and discriminate against HUD’s clients:  first time homebuyers and lower income families."

Ms. Martinez and Ms. Jaber discussed the problem with State Senate President pro Tempore, John Burton (, who decided to carry a bill to prohibit the actual existence of race restrictive covenants in California.  "We provided technical assistance to Senator Burton in the drafting of his bill, SB 1148, and in the development of its legislative history and testimony," said May Jaber.  "We also provided information and education to fair housing and other pertinent groups, which developed into a groundswell of support for the proposed legislation."

After passing through the California Legislature by unanimous vote, SB 1148 was signed into law by Governor Gray Davis on October 2, 1999.  The final bill text reaches beyond race restrictions by expressly prohibiting the existence of any restrictive covenant that discriminates against any person protected under the California fair housing act.  The law further clarifies that the existence of any such restrictive covenant in itself constitutes prohibited discrimination.  Accordingly, homeowner’s associations are required to amend their current governing documents to delete such covenants and are subject to legal action if they fail to do so in a timely manner.

In addition, the new law requires all persons and entities who regularly disseminate declarations to provide the following notice in at least 20-point bold face red type:
"If this document contains any restriction based on race, color, religion, sex, familial status, marital status, disability, national origin, or ancestry, that restriction violates state and federal fair housing laws and is void. Any person holding an interest in this property may request that the county recorder remove the restrictive covenant language pursuant to subdivision (c) of Section 12956.1 of the Government Code."

The law further provides that any person who files a document for the express purpose of adding a racially restrictive covenant is guilty of a misdemeanor.

With the passage of SB 1148, the existence and dissemination without notice of discriminatory covenants is expressly prohibited throughout the State of California.  In a recent letter to HUD Secretary Andrew Cuomo, Senator Burton commended the Community Builders for their role in this successful legislation. "San Francisco Community Builders Lynn Martinez and May Jaber have provided invaluable assistance to my office with my proposed legislation to eradicate race restrictive covenants in the State of California. . . I commend HUD Community Builders on their proactive efforts to address fair housing problems in California."

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