Covenant running with the land
Encyclopedia
A covenant, in its most general sense, is a solemn promise to engage in or refrain from a specified action.
A covenant is a type of contract
in which the covenantor makes a promise to a covenantee to do or not do some action. In real property
law, the term real covenant
s is used for conditions tied to the use of land. A "covenant running with the land
", also called a covenant appurtenant, imposes duties or restrictions upon the use of that land regardless of the owner. In contrast, the covenant in gross imposes duties or restrictions on a particular owner.
Covenants for title are covenants which come with a deed
or title to the property
, in which the grantor of the title makes certain guarantees to the grantee.
Under the common law
a covenant was distinguished from an ordinary contract by the presence of a seal
. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration
. A Covenant is also used to describe a contract or a legally binding promise.
, in the law
of real property
. It is a nonpossessory interest in land
in one form as an agreement
between adjoining landowners to do something (affirmative covenant) or to refrain from doing something (restrictive covenant
) with relation to the land. An example of an affirmative covenant is a promise to build a fence, while an example of a restrictive covenant is a promise not to develop land for commercial use. Another agreement form that is common is a Covenants, Conditions, and Restrictions (CC&R) document as with a condominium
.
Each covenant has two sides: the burden and the benefit. The burden is the promissor's duty to perform the promise and the benefit is the promisee's right to enforce the promise.
These covenants "run with the land" which means that subsequent owners or successors may either be able to enforce the covenant or be burdened by it.
A covenant can be terminated if the original purpose of the covenant is lost.
A negative covenant is one in which property owners are unable to perform a specific activity, such as block a scenic view.
An affirmative covenant is one in which property owners must actively perform a specific activity, such as keeping the lawn tidy or paying homeowner's association dues for the upkeep of the surrounding area.
An agreement not to open a competing business on adjacent property is generally enforceable as a covenant running with the land. However, a covenant that restricts sale to a minority person (commonly used during the Jim Crow era
) is considered unenforceable.
At common law, the burden of a restrictive covenant does not run except where strict privity of estate (a landlord/tenant relationship) exists. The burden can be enforced at law in limited circumstances under the benefit/burden test - that is, whoever takes the benefit must also shoulder the burden. In Halsall v Brizell [1957] Ch 169, a covenant requiring the upkeep of roads was found to bind the successor in title to the original covenantor because he had elected to take the benefit. A positive burden can run in law, but not in equity.
The rule in Halsall v Brizell is limited to cases where the benefit can be linked to a specific burden and where the covenantor's successors in title can physically elect to take the benefit. For example, a restrictive covenant to contribute to the maintenance costs of a common area will not be binding if the covenantor's successors in title have no legal right to use them.
The burden of a restrictive covenant will run in equity if these prerequisites are met:
The leading case of restrictive covenants in equity is generally regarded as that of Tulk v Moxhay
in which is was determined that the burden could run in equity subject to the qualifications listed above.
s of all the lots in a common interest development, particularly in the tens of millions of American homes governed by a homeowner association
(HOA) or condominium association. There are some office or industrial parks subject to CCRs as well.
These CCRs might, for example, dictate building materials (including roofing materials), prohibit certain varieties of trees, or place restrictions on the number of dwellings that may be built on the property. The purpose of this is to maintain a neighborhood character or prevent improper use of the land. Many covenants of this nature were imposed in the 1920s through the 1940s, before zoning
became widespread. However, many modern developments are also restricted by covenants on property titles; this is often justified as a means of preserving the values of the houses in the area. Covenant restrictions can be removed through court action, although this process is lengthy and often very expensive. In some cases it even involves a plebiscite of nearby property owners. Although control of such planning
issues is often governed by local planning schemes or other regulatory frameworks rather than through the use of covenants, there are still many covenants imposed, particularly in states that limit the level of control over real property use that may be exercised by local governments.
on the basis of race, ethnicity, religion or social class were common in the United States, where the primary intent was to keep "white
" neighbourhoods "white". Such covenants (also known as racial covenants or racial restrictive covenants) were employed by many real estate developers
to "protect" entire subdivisions
. The purpose of an exclusionary covenant was to prohibit a buyer of property from reselling, leasing or transferring the property to members of a given race, ethnic origin and/ or religion as specified in the title deed. Some covenants, such as those tied to properties in Forest Hills Gardens, New York
, also sought to exclude working class
people however this type of social segregation was more commonly achieved through the use of high property prices, minimum cost requirements and application reference checks. In practice, exclusionary covenants were most typically concerned with keeping out African-Americans, however restrictions against Asian-Americans, Jews
and Catholics were not uncommon. For example, the Lake Shore Club District in Pennsylvania
, sought to exclude anyone of Negro
, Mongolian
, Hungarian, Mexican
, Greek
, Armenian
, Austrian
, Italian, Russian
, Polish
, Slavish or Roumanian
birth. Cities known for their widespread use of racial covenants include Chicago
, Baltimore
, Detroit and Los Angeles
.
, and the fear of "black invasion" into white neighbourhoods, which they felt would result in depressed property prices, increased nuisance (crime) and social instability.
the consequent race riots of 1917-1921 and the 1917 US Supreme Court ruling of Buchanan v. Warley
that invalidated the imposition of racially restrictive zoning
ordinances (residential segregation
based on race) on constitutional grounds.
, the legality of racial restrictive covenants was affirmed by the landmark Corrigan v. Buckley judgment that ruled that such clauses constituted "private action" and as such were not subject to the Due Process
clause of the Fourteenth Amendment
. As a result of this decision, racial restrictive covenants proliferated across the United States during the 1920s and 1930s. Even the invalidation of such a covenant by the U.S. Supreme Court in the 1940 case of Hansberry v. Lee
did little to reverse the trend because the ruling was based on a technicality and failed to set a legal precedent. It was not until 1948 that the Shelley v. Kraemer
judgment overturned the Corrigan v. Buckley decision in stating that exclusionary covenants were unconstitutional under the Fourteenth Amendment and were therefore legally unenforceable.
policies often contain exclusions preventing coverage of such restrictions.
A covenant is a type of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
in which the covenantor makes a promise to a covenantee to do or not do some action. In real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
law, the term real covenant
Real Covenant
A real covenant is a term used in real property law to describe a promise concerning the use of land. Real covenants are classified as either affirmative, a promise to do something or negative, a promise to not do something A real covenant is a term used in real property law to describe a promise...
s is used for conditions tied to the use of land. A "covenant running with the land
Covenant running with the land
A covenant, in its most general sense, is a solemn promise to engage in or refrain from a specified action.A covenant is a type of contract in which the covenantor makes a promise to a covenantee to do or not do some action. In real property law, the term real covenants is used for conditions tied...
", also called a covenant appurtenant, imposes duties or restrictions upon the use of that land regardless of the owner. In contrast, the covenant in gross imposes duties or restrictions on a particular owner.
Covenants for title are covenants which come with a deed
Deed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
or title to the property
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
, in which the grantor of the title makes certain guarantees to the grantee.
Under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
a covenant was distinguished from an ordinary contract by the presence of a seal
Seal (device)
A seal can be a figure impressed in wax, clay, or some other medium, or embossed on paper, with the purpose of authenticating a document ; but the term can also mean the device for making such impressions, being essentially a mould with the mirror image of the design carved in sunken- relief or...
. Because the presence of a seal indicated an unusual solemnity in the promises made in a covenant, the common law would enforce a covenant even in the absence of consideration
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
. A Covenant is also used to describe a contract or a legally binding promise.
Covenants related to land
A covenant running with the land, is a real covenantReal Covenant
A real covenant is a term used in real property law to describe a promise concerning the use of land. Real covenants are classified as either affirmative, a promise to do something or negative, a promise to not do something A real covenant is a term used in real property law to describe a promise...
, in the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
. It is a nonpossessory interest in land
Nonpossessory interest in land
A nonpossessory interest in land is a term of the law of property to describe any of a category of rights held by one person to use land that is in the possession of another...
in one form as an agreement
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
between adjoining landowners to do something (affirmative covenant) or to refrain from doing something (restrictive covenant
Restrictive covenant
A restrictive covenant is a type of real covenant, a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently "run with the land" and are enforceable on subsequent buyers of the property...
) with relation to the land. An example of an affirmative covenant is a promise to build a fence, while an example of a restrictive covenant is a promise not to develop land for commercial use. Another agreement form that is common is a Covenants, Conditions, and Restrictions (CC&R) document as with a condominium
Condominium
A condominium, or condo, is the form of housing tenure and other real property where a specified part of a piece of real estate is individually owned while use of and access to common facilities in the piece such as hallways, heating system, elevators, exterior areas is executed under legal rights...
.
Each covenant has two sides: the burden and the benefit. The burden is the promissor's duty to perform the promise and the benefit is the promisee's right to enforce the promise.
These covenants "run with the land" which means that subsequent owners or successors may either be able to enforce the covenant or be burdened by it.
Requirements for burden to run at common law
In order for the burden of covenant to run with the land, the following requirements must be met:- The covenant must be in writing to satisfy the Statute of FraudsStatute of fraudsThe statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
. - The original parties to the agreement must have intended that successors be bound by the agreement.
- A subsequent owner must have had actual noticeActual noticeActual notice is a law term, used most frequently in civil procedure. It is notice delivered in such a way as to give legally sufficient assurance that actual knowledge of the matter has been conveyed to the recipient...
, inquiry notice, or constructive noticeConstructive noticeConstructive notice also known as the Doctrine of Constructive Notice is a legal fiction used in the law of both common law and civil law systems to signify that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it.-Intellectual...
(record) of the covenant at the time of purchase. - The covenant must touch or concern the land. The covenant must relate to the use or enjoyment of the land.
- There must be horizontal privity between the original parties.
- Horizontal privity is found if, at the time the original parties enter into the agreement, those parties share some interest in the subject land independent of the covenant (e.g. landlordLandlordA landlord is the owner of a house, apartment, condominium, or real estate which is rented or leased to an individual or business, who is called a tenant . When a juristic person is in this position, the term landlord is used. Other terms include lessor and owner...
and tenantLeasehold estateA leasehold estate is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord....
, mortgagee and mortgagor, or holders of mutual easements). Individual state statutes can alter the requirements of horizontal privity of estatePrivity of estatePrivity of estate is the relation that subsists between a landlord and his tenant, which creates a relationship between landlord and tenant.It is a general rule that a termor cannot transfer the tenancy or privity of estate between himself and his landlord, without the latter's consent: an...
.
- Horizontal privity is found if, at the time the original parties enter into the agreement, those parties share some interest in the subject land independent of the covenant (e.g. landlord
- There must be strict vertical privity of estatePrivity of estatePrivity of estate is the relation that subsists between a landlord and his tenant, which creates a relationship between landlord and tenant.It is a general rule that a termor cannot transfer the tenancy or privity of estate between himself and his landlord, without the latter's consent: an...
.- Vertical privity characterizes the relationship between the original party to the covenant and the subsequent owner. To be bound by the covenant, the successor must hold the entire estate in landEstate in landAn estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....
held by the original party (strict vertical privity of estate). Note that because strict vertical privity is required for a burden to run, a lessee could not have a burden enforced against them. However, a benefited party could sue the owner of the reversion of the estate, and the owner could possibly sue the lessee for wasteWaste (law)Waste is a term used in the law of real property to describe a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property...
.
- Vertical privity characterizes the relationship between the original party to the covenant and the subsequent owner. To be bound by the covenant, the successor must hold the entire estate in land
Court interpretation of real covenants
Courts interpret covenants relatively strictly and give the words of the agreement their ordinary meaning. Generally if there is any unclear or ambiguous language regarding the existence of a covenant courts will favor free alienation of the property. Courts will not read any restrictions on the land by implication (as is done with easements for example).A covenant can be terminated if the original purpose of the covenant is lost.
A negative covenant is one in which property owners are unable to perform a specific activity, such as block a scenic view.
An affirmative covenant is one in which property owners must actively perform a specific activity, such as keeping the lawn tidy or paying homeowner's association dues for the upkeep of the surrounding area.
An agreement not to open a competing business on adjacent property is generally enforceable as a covenant running with the land. However, a covenant that restricts sale to a minority person (commonly used during the Jim Crow era
Jim Crow laws
The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans...
) is considered unenforceable.
England and Wales
At common law, the benefit of a restrictive covenant runs with the land if three conditions are met:- The covenant must not be personal in nature - it must benefit the land rather than an individual
- The covenant must 'touch and concern' the land - it must affect how the land is used or the value of the land
- The benefited land must be identifiable.
At common law, the burden of a restrictive covenant does not run except where strict privity of estate (a landlord/tenant relationship) exists. The burden can be enforced at law in limited circumstances under the benefit/burden test - that is, whoever takes the benefit must also shoulder the burden. In Halsall v Brizell [1957] Ch 169, a covenant requiring the upkeep of roads was found to bind the successor in title to the original covenantor because he had elected to take the benefit. A positive burden can run in law, but not in equity.
The rule in Halsall v Brizell is limited to cases where the benefit can be linked to a specific burden and where the covenantor's successors in title can physically elect to take the benefit. For example, a restrictive covenant to contribute to the maintenance costs of a common area will not be binding if the covenantor's successors in title have no legal right to use them.
The burden of a restrictive covenant will run in equity if these prerequisites are met:
- The burden cannot be a positive burden (that is, it requires expenditure to meet it);
- The purchaser must have notice of the covenant
- The covenant must benefit the covenantee's land
- The covenant must be intended to run with the covenantor's land.
The leading case of restrictive covenants in equity is generally regarded as that of Tulk v Moxhay
Tulk v Moxhay
Tulk v Moxhay 41 ER 1143 is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" Tulk v Moxhay (1848) 41 ER 1143 is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" Tulk v Moxhay (1848) 41...
in which is was determined that the burden could run in equity subject to the qualifications listed above.
Covenants in planned communities
In contemporary practice in the United States, a covenant typically refers to restrictions set on contracts like deeds of sale. "Covenants, Conditions, and Restrictions," commonly abbreviated "CC&Rs" or "CCRs", are a complicated system of covenants, known generically as "deed restrictions," built into the deedDeed
A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed...
s of all the lots in a common interest development, particularly in the tens of millions of American homes governed by a homeowner association
Homeowners association
A homeowner association is a corporation formed by a real estate developer for the purpose of marketing, managing, and selling of homes and lots in a residential subdivision...
(HOA) or condominium association. There are some office or industrial parks subject to CCRs as well.
These CCRs might, for example, dictate building materials (including roofing materials), prohibit certain varieties of trees, or place restrictions on the number of dwellings that may be built on the property. The purpose of this is to maintain a neighborhood character or prevent improper use of the land. Many covenants of this nature were imposed in the 1920s through the 1940s, before zoning
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
became widespread. However, many modern developments are also restricted by covenants on property titles; this is often justified as a means of preserving the values of the houses in the area. Covenant restrictions can be removed through court action, although this process is lengthy and often very expensive. In some cases it even involves a plebiscite of nearby property owners. Although control of such planning
Urban planning
Urban planning incorporates areas such as economics, design, ecology, sociology, geography, law, political science, and statistics to guide and ensure the orderly development of settlements and communities....
issues is often governed by local planning schemes or other regulatory frameworks rather than through the use of covenants, there are still many covenants imposed, particularly in states that limit the level of control over real property use that may be exercised by local governments.
Exclusionary covenants
In the 1920s and 1930s, covenants that restricted the sale or occupation of real propertyReal property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
on the basis of race, ethnicity, religion or social class were common in the United States, where the primary intent was to keep "white
White people
White people is a term which usually refers to human beings characterized, at least in part, by the light pigmentation of their skin...
" neighbourhoods "white". Such covenants (also known as racial covenants or racial restrictive covenants) were employed by many real estate developers
Real estate development
Real estate development, or Property Development, is a multifaceted business, encompassing activities that range from the renovation and re-lease of existing buildings to the purchase of raw land and the sale of improved land or parcels to others...
to "protect" entire subdivisions
Subdivision (land)
Subdivision is the act of dividing land into pieces that are easier to sell or otherwise develop, usually via a plat. The former single piece as a whole is then known in the United States as a subdivision...
. The purpose of an exclusionary covenant was to prohibit a buyer of property from reselling, leasing or transferring the property to members of a given race, ethnic origin and/ or religion as specified in the title deed. Some covenants, such as those tied to properties in Forest Hills Gardens, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, also sought to exclude working class
Working class
Working class is a term used in the social sciences and in ordinary conversation to describe those employed in lower tier jobs , often extending to those in unemployment or otherwise possessing below-average incomes...
people however this type of social segregation was more commonly achieved through the use of high property prices, minimum cost requirements and application reference checks. In practice, exclusionary covenants were most typically concerned with keeping out African-Americans, however restrictions against Asian-Americans, Jews
Jews
The Jews , also known as the Jewish people, are a nation and ethnoreligious group originating in the Israelites or Hebrews of the Ancient Near East. The Jewish ethnicity, nationality, and religion are strongly interrelated, as Judaism is the traditional faith of the Jewish nation...
and Catholics were not uncommon. For example, the Lake Shore Club District in Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, sought to exclude anyone of Negro
Black people
The term black people is used in systems of racial classification for humans of a dark skinned phenotype, relative to other racial groups.Different societies apply different criteria regarding who is classified as "black", and often social variables such as class, socio-economic status also plays a...
, Mongolian
Mongols
Mongols ) are a Central-East Asian ethnic group that lives mainly in the countries of Mongolia, China, and Russia. In China, ethnic Mongols can be found mainly in the central north region of China such as Inner Mongolia...
, Hungarian, Mexican
Mexican people
Mexican people refers to all persons from Mexico, a multiethnic country in North America, and/or who identify with the Mexican cultural and/or national identity....
, Greek
Greeks
The Greeks, also known as the Hellenes , are a nation and ethnic group native to Greece, Cyprus and neighboring regions. They also form a significant diaspora, with Greek communities established around the world....
, Armenian
Armenians
Armenian people or Armenians are a nation and ethnic group native to the Armenian Highland.The largest concentration is in Armenia having a nearly-homogeneous population with 97.9% or 3,145,354 being ethnic Armenian....
, Austrian
Austrians
Austrians are a nation and ethnic group, consisting of the population of the Republic of Austria and its historical predecessor states who share a common Austrian culture and Austrian descent....
, Italian, Russian
Russians
The Russian people are an East Slavic ethnic group native to Russia, speaking the Russian language and primarily living in Russia and neighboring countries....
, Polish
Poles
thumb|right|180px|The state flag of [[Poland]] as used by Polish government and diplomatic authoritiesThe Polish people, or Poles , are a nation indigenous to Poland. They are united by the Polish language, which belongs to the historical Lechitic subgroup of West Slavic languages of Central Europe...
, Slavish or Roumanian
Romanians
The Romanians are an ethnic group native to Romania, who speak Romanian; they are the majority inhabitants of Romania....
birth. Cities known for their widespread use of racial covenants include Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
, Baltimore
Baltimore
Baltimore is the largest independent city in the United States and the largest city and cultural center of the US state of Maryland. The city is located in central Maryland along the tidal portion of the Patapsco River, an arm of the Chesapeake Bay. Baltimore is sometimes referred to as Baltimore...
, Detroit and Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
.
History
Racial covenants emerged during the mid-nineteenth century and started to gain prominence from the 1890s onwards. However it was not until the 1920s that they adopted widespread national significance, a situation that continued until the 1940s. Some commentators have attributed the popularity of exclusionary covenants at this time as a response to the urbanisation of black Americans following World War IWorld War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, and the fear of "black invasion" into white neighbourhoods, which they felt would result in depressed property prices, increased nuisance (crime) and social instability.
the consequent race riots of 1917-1921 and the 1917 US Supreme Court ruling of Buchanan v. Warley
Buchanan v. Warley
Buchanan v. Warley, 245 U.S. 60 was a unanimous United States Supreme Court decision addressing civil government instituted racial segregation in residential areas. The Court held that a Louisville, Kentucky, city ordinance prohibiting the sale of real property to African Americans violated the...
that invalidated the imposition of racially restrictive zoning
Zoning
Zoning is a device of land use planning used by local governments in most developed countries. The word is derived from the practice of designating permitted uses of land based on mapped zones which separate one set of land uses from another...
ordinances (residential segregation
Residential Segregation
Residential segregation is the physical separation of cultural groups based on residence and housing, or a form of segregation that "sorts population groups into various neighborhood contexts and shapes the living environment at the neighborhood level."...
based on race) on constitutional grounds.
Opposition
During the 1920s, the National Association for the Advancement of Coloured People (NAACP) sponsored several unsuccessful legal challenges against racial covenants. In a blow to campaigners against racial segregationRacial segregation
Racial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...
, the legality of racial restrictive covenants was affirmed by the landmark Corrigan v. Buckley judgment that ruled that such clauses constituted "private action" and as such were not subject to the Due Process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. As a result of this decision, racial restrictive covenants proliferated across the United States during the 1920s and 1930s. Even the invalidation of such a covenant by the U.S. Supreme Court in the 1940 case of Hansberry v. Lee
Hansberry v. Lee
Hansberry v. Lee, , is a famous case now usually known in civil procedure for teaching that res judicata may not bind a subsequent plaintiff who had no opportunity to be represented in the earlier civil action. The facts of the case dealt with a racially restrictive covenant that barred African...
did little to reverse the trend because the ruling was based on a technicality and failed to set a legal precedent. It was not until 1948 that the Shelley v. Kraemer
Shelley v. Kraemer
Shelley v. Kraemer, 334 U.S. 1 , is a United States Supreme Court case which held that courts could not enforce racial covenants on real estate.-Facts of the case:...
judgment overturned the Corrigan v. Buckley decision in stating that exclusionary covenants were unconstitutional under the Fourteenth Amendment and were therefore legally unenforceable.
Exclusionary covenants today
Although exclusionary covenants are not enforceable today, they still exist in many original property deeds as 'underlying documents', and Title insuranceTitle insurance
Title insurance is a form of indemnity insurance predominantly found in the United States which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage liens. Title insurance is principally a product developed and sold in the...
policies often contain exclusions preventing coverage of such restrictions.
Examples in U.S.
- Forest Hills Gardens, Queens, New York – covenants forbade the sale of real property to blacks, Jews and working-class people.
- Jackson HeightsJackson HeightsJackson Heights may refer to:*Jackson Heights, Queens, an area within the Queens section of New York City*Jackson Heights , a residential neighborhood within the East Tampa district of the City of Tampa, Florida, United States...
, Queens, New York – covenants employed to restrict occupancy to white, non-immigrant Protestants. - Washington Park SubdivisionWashington Park SubdivisionThe Washington Park Subdivision is the name of the historic 3-city block by 8-city block subdivision in the northwest corner of the Woodlawn community area, on the South Side of Chicago in Illinois that stands in the place of the original Washington Park Race Track. The area evolved as a...
, Chicago, Illinois – restrictive covenants used to exclude African-Americans. - Palos VerdesPalos VerdesPalos Verdes is a name often used to refer to a group of coastal cities in the Palos Verdes Hills on the Palos Verdes Peninsula, within southwestern Los Angeles County in the U.S...
, Los Angeles, California – covenants forbade an owner to sell or rent a house to anyone not of white or Caucasian raceCaucasian raceThe term Caucasian race has been used to denote the general physical type of some or all of the populations of Europe, North Africa, the Horn of Africa, Western Asia , Central Asia and South Asia...
and to not permit African-Americans on their property with the exception of chauffeurs, gardeners and domestic servants. - Guilford, BaltimoreGuilford, BaltimoreGuilford is a neighborhood located in the northern part of Baltimore, Maryland, United States. It is bounded roughly by Coldspring Lane on the north, York Road/Greenmount Avenue on the east, convergence of St. Paul Street and Greenway Street at University Parkway on the south, and Charles Street...
, Maryland – covenants provided for exclusion against negros or persons of negro extraction.
Examples outside U.S.
Although most commonly associated with the United States, racial restrictive covenants have been used in other countries:- CanadaCanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
– Subdivisions such as Westdale, OntarioWestdale, OntarioWestdale is a residential neighbourhood in Hamilton, Ontario, Canada. It is centred on the Westdale Village shopping district and located near McMaster University. Westdale has been the heart of the Jewish community of Hamilton for many years...
employed racial covenants to bar a diverse array of ethnic groups such as Armenians and foreign-born Italians and Jews. Opposition to exclusionary covenants was significant in Canada, culminating in the 1945 Re: Drummond Wren ruling by the Ontario High Court which invalidated their use. This judgment was influential in guiding similar decisions in the United States and elsewhere. - South AfricaSouth AfricaThe Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
– racial covenants emerged in NatalNatal ProvinceNatal, meaning "Christmas" in Portuguese, was a province of South Africa from 1910 until 1994. Its capital was Pietermaritzburg. The Natal Province included the bantustan of KwaZulu...
during the 1890s as an attempt to prevent Indians from acquiring properties in more expensive areas and were commonplace across the country by the 1930s. They were later used as a tool to further the cause of apartheid against the black population. - ZimbabweZimbabweZimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...
– Asians and coloured people were excluded from purchasing or occupying homes in European areas by restrictive racial covenants written into most title deeds.