Defining Community
Condominiums, cooperatives, planned unit developments, homeowners associations, and similar entities are often collectively referred to as “community associations.” As I have said before (page 33), that name can mean a few different things, but I prefer to use it as an aspiration. Those living conditions – neighborhoods, shared buildings, common amenities – are not just a happy accident of residence; they are an opportunity to create genuine community.
One place where the community association definition has grown from the simple dictionary definition and toward the aspirational one is in the elimination of racially restrictive covenants. Perhaps you watch the video below and you are like “young Brian,” surprised to see or hear that such things ever existed, but certainly glad they are not relevant anymore. Or perhaps you are like “wise Brian,” (you didn’t think I was going to say “old” did you?), who knows that while those covenants are illegal and unenforceable, they are still a blight on communities.
In either case, here is what you should know about racially restrictive covenants.
History
For many years in the District of Columbia and surrounding areas, it was common practice and even endorsed by the U.S. Supreme Court to draw racially restrictive lines around neighborhoods or entire regions of a city. During the 1960’s, while African Americans were obtaining nominal civil and voting rights and even the claim of Fair Housing without discrimination from the federal government, there were substantial portions of the population still fighting to keep them down. This was accomplished in a number of ways, significantly by putting in place barriers to purchasing homes in suburban, primarily white neighborhoods. In addition to the social pressures and dangers associated with moving to such a move, there were tangible legal prohibitions restricting black people from buying homes in those neighborhoods.
Time Passes
While those racially restrictive covenants may not have been enforced (at least publicly or legally) for many years, they have stood, much like monuments to slavery, and continued to embolden those who might use them, and to dismay and frustrate those whose ancestors may have been held back by them. Their history is well documented and rooted in the development of Maryland as well. In 1972, the Court of Appeals for the DC Circuit held that the Recorder of Deeds could be enjoined or prohibited from recording any document with a racially restrictive covenant therein. The title companies and mortgage banks agreed generally to disregard and cease reporting any antiquated and nullified racial covenants. And the practice faded away.
Recognizing and Correcting
In recent years, Maryland has recognized that even having those covenants recorded can still be a slight to minority homeowners or residents. In 2018, thanks in part to lobbying efforts by CAI, Maryland passed a law streamlining and lowering the bar for the removal of such covenants. In addition, that law requires associations who are made aware of the covenants by their owners to take action to remove them.
More than Symbolic
People sometimes brush off actions like this as simply symbolic or performative. That seems overly dismissive. In litigation over the enforceability of such covenants, courts had to confront and reject arguments that black purchasers bought with knowledge of the restrictions and should be regarded as estopped from contesting. Let me say that again – attorneys argued that black people moved into the neighborhood knowing about the racist covenants, so they effectively consented to being discriminated against.
Given history like that, it does not seem like a lot to ask for associations to do the bare minimum and remove these racist covenants from their history.
If you have questions about how to remove racist covenants from your community documents in Maryland or the District of Columbia, whether you are a board member or resident, please feel free to contact us for no-cost, no-obligation assistance in preparing those documents.