‘Fairly simple bill’ provides way to reject discriminatory land title restrictive covenants

Although covenants barring people of certain races, ethnicities and religions from owning property are no longer enforceable, they are still attached to many deeds and mortgages throughout Indiana.

A bill introduced in the Indiana General Assembly and passed unanimously by the House Judiciary Committee Monday would allow for a notice to be attached rejecting those covenants. Under House Bill 1314, a person who discovers a “recorded discriminatory restrictive covenant” can include a statement with the property document that the “covenant is invalid and unenforceable.”

The author, Rep. Jerry Torr, R-Carmel, described his legislation as a “fairly simple bill” when it was called for a hearing before the judiciary committee. He said the separate notice would explain that even though the restrictions are part of the property document, “they’re not enforceable and they’re repugnant to public policy.”

Racial covenants were implemented well into the middle of the 20th century to create all-white neighborhoods in some cities and towns. As Richard Rothstein details in his book “The Color of Law,” these covenants, backed by the Federal Housing Administration and the Veterans Administration, led to the segregation of urban areas that remain racially divided today.

Neighborhoods and subdivisions across the country, including in Indiana, put these restrictive covenants in place to deny homeownership in certain areas to people of a particular race, religion or national origin. Often, according to Amy Nelson, executive director of the Fair Housing Center of Central Indiana, these covenants targeted such people who are Black, Chinese, Japanese, Italian, Irish, Jewish or Catholic.

“The center occasionally receives contacts from Hoosiers who have discovered that their neighborhood or their deed has a covenant with discriminatory language in it,” Nelson told the House Judiciary Committee. “I typically explain how these covenants are no longer enforceable. They then ask about the process to remove the language and we are unable to provide one.”

HB 1314 would open an avenue to renouncing discriminatory covenants.

The bill would also provide immunity from liability for incorrectly stating that the restrictive covenant is discriminatory.

A fiscal analysis of HB 1314 concluded if the bill becomes law, the number of civil suits filed in state courts will likely decrease. This, in turn, is expected to create a “slight decrease” in the workload for the court system and would lower the revenue from filings, although such a decrease “is likely to be small.”

Initially the U.S. Supreme Court struck down laws that restricted homes sales in the 1917 decision, Buchanan v. Warley, 245 U.S. 60, which originated from Louisville, Kentucky. The court found that racially restrictive zoning ordinances inhibited the right of the property owner to sell to whomever he pleased, according to Rothstein.

Cities, particularly in the South, ignored the Buchanan ruling. Rothstein noted in 1926, Indianapolis adopted a regulation to allow African Americans to move into a white only neighborhood “only if a majority of its white residents gave their written consent.”

Also, property owners and developers began putting restrictive language into their contracts. The courts viewed these as private agreements, and therefore they did not violate the Constitution, according to Rothstein.

With Shelley v. Kraemer, 334 U.S. 1 (1948), the Supreme Court ruled restrictive covenants were unenforceable. Peter Irons wrote in his book “A People’s History of the Supreme Court” that the court found property owners were free to adopt covenants but they could not ask the judiciary to enforce them.

“The Constitution confers on no individual the right to demand action by the States which results in the denial of equal protection of the laws to other individuals,” Chief Justice Fred Vinson wrote.

Irons noted when one of the plaintiffs, Ethel Shelley, learned the Supreme Court decision would allow her family to remain in their St. Louis house, she exclaimed, “My little soul is overjoyed.”

Torr’s bill defines a “discriminatory restrictive covenant” as any restrictive covenant on real property that if enforced would violate the federal Fair Housing Act’s prohibition against discrimination on the basis of race, color, sex, religion, familial status or national origin. Also, the bill’s definition includes any restrictive covenant that violates the Constitution’s Equal Protection Clause.

An amendment that passed the judiciary committee on consent would add the word “disability” into the law to mirror the language of the Fair Housing Act.

Testifying before the judiciary committee, Elizabeth Berg, attorney and president of the Indiana Land Title Association, said covenants limiting ownership and occupancy to only members of the “pure white race” pepper Indiana’s land records.

“While these racist covenants are no longer enforceable, they are still present in a person’s chain of title,” Berg, told the committee. “The Indiana Land Title Association regularly addresses these statements with our fellow Hoosiers and while many of us cannot possibly understand how these statements would make someone feel, we know they are terrible and still have the power to cause pain.”

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