Reference Entry

Restrictive Covenants.

Thomas E. Carney

in Encyclopedia of African American History, 1896 to the Present: From the Age of Segregation to the Twenty-first Century

Published in print January 2009 | ISBN: 9780195167795
Restrictive Covenants.

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A major element of the Jim Crow period—which permeated American society from the 1870s to the 1960s—was housing segregation. In the early twentieth century, housing segregation was, in part, the result of the enactment of zoning laws in major cities throughout the country. One zoning law, developed in Louisville, Kentucky, and also adopted in Baltimore, Maryland, was challenged by the NAACP in 1917 in Buchanan v. Warley. In this case the U.S. Supreme Court found that the use of zoning laws to establish segregated housing violated the equal protection clause of the Fourteenth Amendment to the Constitution. The High Court's decision did not, however, end racially segregated housing; rather, it spurred the use of another legal mechanism to establish segregated housing: the restrictive covenant.Definition.Black's Law Dictionary defines a restrictive covenant as a “private agreement … that restricts the use or occupancy of real property.” By definition it is an agreement between two or more adjacent property owners who promise to abide by the terms of the agreement. Lot size, setback, and rear-yard requirements are often established in such covenants. In racially restrictive covenants there is a term that forbids the sale of any of the subject properties to certain racial groups, usually African Americans or Jews. The covenant is also said to “run with the land,” which means that the obligation imposed by the covenant passes to subsequent owners of the property. Such covenants are reciprocal; that is, the obligation imposed by the agreement is equally enforceable on all parties to the covenant. The restrictive covenant may be contained in a separate document or within a deed. In either case the document is recorded with the local government official prescribed by state law. Finally, the covenants are enforceable through private legal actions by any of the parties to the covenant.The Challenge to Restrictive Covenants.In 1911 thirty of thirty-nine property owners in a neighborhood in Saint Louis, Missouri, signed a restrictive covenant mutually agreeing to permit only whites to use or occupy the subject land for a period of fifty years. In 1945 an African American, Shelley, purchased a parcel of land subject to this restrictive covenant. A white property owner, Kraemer, brought an action to prevent Shelley from occupying the property and taking title to it. The Circuit Court of Saint Louis denied Kraemer's claim, but the Missouri Supreme Court reversed the court's decision and granted Kraemer his relief. Shelley then appealed the matter to the U.S. Supreme Court. In a 1948 majority opinion by Chief Justice Fred Vinson in Shelley v. Kraemer, the Supreme Court found that the restrictive covenant itself was legal, but that any attempt to enforce the covenant through the courts was state action; this state action would be discriminatory, so the enforcement by the state of a restrictive covenant was unconstitutional, being in violation of the equal protection clause of the Fourteenth Amendment.Shelley did not end the use of restrictive covenants to maintain segregated neighborhoods. In the years following the decision, white homeowners attempted to enforce racially restrictive covenants by suing for damages allegedly resulting from the violation of the covenants. They met with mixed results. The matter finally came before the Supreme Court in Barrows v. Jackson in 1953. In this case the parties, living in Los Angeles, entered into a restrictive covenant that prohibited the occupancy of the respective properties by African Americans. Subsequently, the defendant sold her property to an African American. The plaintiffs then sued the defendant for breaching the agreement. The California trial court dismissed the case on the basis of Shelley v. Kraemer. The plaintiffs then appealed the case to the U.S. Supreme Court. The Court found that individuals’ voluntary adherence to restrictive covenants did not violate the Constitution because it did not involve any state action. However, the use of the state courts to extract damages for an individual's refusing to abide by the terms of a restrictive covenant perpetuated racial segregation and therefore was state action and was prohibited under the Fourteenth Amendment.The end of segregated housing and the racially restrictive covenant came in June 1968—  just months after the passage of the Civil Rights Act of 1968—with the case of Jones v. Alfred H. Mayer Co. In the majority opinion, Justice Potter Stewart stated that Congress, acting under the Thirteenth Amendment, could not only do away with slavery but also do away with the “badges and incidents of slavery.” Therefore, the legislature could reach and prohibit individual acts of racial discrimination, such as the racially restrictive covenant. Thus with this decision and the Civil Rights Act of 1968, the racially restrictive covenant itself became void.

Reference Entry.  897 words.  Illustrated.

Subjects: History

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