Also known as: discriminatory covenants · restrictive covenant · racially restrictive covenant
Written by attorneys — see sources below.
A restrictive covenant that limits the sale, occupancy, or use of land on the basis of race, color, religion, or other protected characteristics. Such covenants are negative covenants that run with the land when properly created but are unenforceable in court because judicial enforcement constitutes state action violating the Equal Protection Clause.
Deanna Davenport records a deed restriction on her parcel stating that no future owner may sell or lease to persons of a designated racial group. When a neighbor attempts to enforce the restriction against a subsequent purchaser, the court treats the clause as a restrictive covenant rather than a negative easement because it limits permissible uses of land without granting any affirmative right of entry.
Diane Dawson sells a lot subject to a recorded clause barring occupancy by members of a particular ethnic group. Years later the buyer proposes to convey the lot to a prohibited purchaser. The seller's successor sues to block the transfer, arguing the clause is a negative covenant that limits land use and therefore runs with the land under the Restatement definition.
Darius Dixon and several neighbors sign a covenant prohibiting sale of their homes to Black buyers. When Dixon sells to a Black family, the neighbors sue him at law for damages rather than seeking an injunction. The court refuses to award damages, holding that state enforcement of the discriminatory covenant would violate the Fourteenth Amendment.
In Los Angeles, California, petitioners and respondent entered into a restrictive covenant as owners of residential real estate in the same neighborhood. The covenant stated that each signer promised that no part of the real property should ever be used or occupied by any person not wholly of the white or Caucasian race. Exceptions applied only for domestic servants actively employed on the premises. The restriction was to be incorporated in all transfers of the lots. Petitioners alleged that respondent breached the covenant by conveying her real estate without incorporating the restriction in the deed and by permitting non-Caucasians to move in and occupy the premises. Petitioners sued respondent at law for damages totaling $11,600 for the breach. Petitioner Pikaar was not a signer of the covenant but is successor in interest of a signer. The trial court sustained a demurrer to the complaint. The District Court of Appeal for the Second Appellate District affirmed the judgment, 112 Cal. App. 2d 534, 247 P. 2d 99. The Supreme Court of California denied hearing. The United States Supreme Court granted certiorari because of the importance of the constitutional question involved. The Court also sought to consider the conflict which has arisen in the decisions of the state courts since its prior ruling on related covenants.
View caseDeborah Dunn purchases a home in a neighborhood subject to a recorded covenant excluding persons of the Negro or Mongolian race. When she takes title, neighboring owners sue to enjoin her occupancy. The Supreme Court holds that a state court may not enforce the covenant in equity because doing so would constitute state action denying equal protection.
In February 1911, thirty out of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in St. Louis signed a recorded agreement. The agreement restricted the use and occupancy of the properties for fifty years to persons of the Caucasian race. It excluded occupancy by people of the Negro or Mongolian race. The district included fifty-seven parcels of land. The signers held title to forty-seven parcels. At the time, five parcels were owned by Negroes, with one occupied by Negro families since 1882. On August 11, 1945, the Shelley petitioners, who are Negroes, purchased one parcel from Fitzgerald by warranty deed for valuable consideration without knowledge of the restriction. On October 9, 1945, respondents sued in the Circuit Court of St. Louis to restrain the Shelleys and divest title. The trial court denied relief, but the Supreme Court of Missouri reversed and directed enforcement. In June 1934, Ferguson and his wife executed a contract restricting their Detroit property to Caucasian occupancy. The restriction was effective only if at least eighty percent of the lots in the block were subjected to similar restrictions. The restrictions were to remain in effect until January 1, 1960. Similar agreements covered eighty percent of the lots. By deed dated November 30, 1944, the McGhee petitioners, who were Negroes, acquired and occupied the Detroit property. On January 30, 1945, respondents sued in Wayne County Circuit Court. The court ordered them to move within ninety days and enjoined future occupancy. The Supreme Court of Michigan affirmed. Petitioners claimed that judicial enforcement violated the Fourteenth Amendment.
View caseDolores Diaz buys a condominium unit subject to a recorded declaration that effectively bars occupancy by families with children under a discriminatory age restriction. When the association attempts to enforce the clause, the court refuses relief, treating the provision as an unenforceable discriminatory covenant rather than a valid use restriction.
Gertrude M. Lamden owns a condominium unit in one of three buildings comprising the La Jolla Shores Clubdominium condominium development in La Jolla, California. The development was built in 1971. Lamden and her husband bought unit 375 in 1973. Until 1977 the Lamdens used their unit only as a rental. From 1977 until 1988 they lived in the unit. Since 1988 the unit has again been used only as a rental. The development is governed by defendant La Jolla Shores Clubdominium Homeowners Association, an unincorporated community association. In the late 1980's the Association hired a contractor to renovate exterior siding on all three buildings. The contractor replaced the siding on the southern exposure of Building Three and removed damaged drywall and framing. Where the contractor encountered termites a termite extermination company provided spot-treatment and replaced damaged material. Lamden remodeled the interior of her condominium in 1990. At that time the Association's manager arranged for a termite extermination company to spot-treat areas where Lamden had encountered termites. The following year both Lamden and the Association obtained termite inspection reports recommending fumigation but the Association's Board decided against that approach. The Board based its decision not to fumigate on concerns about the cost of fumigation, logistical problems with temporarily relocating residents, concern that fumigation residue could affect residents' health and safety, awareness that upcoming walkway renovations would include replacement of damaged areas, pet moving expenses, anticipated breakage by the termite company, lost rental income and the likelihood that termite infestation would recur even if primary treatment were utilized. In 1991 and 1992 the Association engaged a company to repair water intrusion damage to four units in Building Three. The company removed siding in the balcony area, repaired and waterproofed the decks, and repaired joints between the decks and the walls of the units. Where termite infestation or damage became apparent during this project spot-treatment was applied and damaged material removed. In 1993 and 1994 the Association commissioned major renovation of the Development's walkway system. The $1.6 million walkway project was monitored by a structural engineer and an on-site architect. In 1994 Lamden brought this action for damages, an injunction and declaratory relief. She purported to state numerous causes of action based on the Association's refusal to fumigate for termites naming as defendants individual members of the Board as well as the Association. Her amended complaint included claims sounding in breach of contract, breach of fiduciary duty, and negligence. At trial Lamden waived any damages claims and dismissed with prejudice the individual defendants. Presently she seeks only an injunction and declaratory relief. After both sides had presented evidence and argument the trial court found there was no question from all the evidence that Mrs. Lamden's unit has had a serious problem with termites. The evidence was overwhelming that termites had been a problem over the past several years. The trial court found that the Board did have a rational basis for their decision to reject fumigation and do what they did. Ultimately the court gave judgment for the Association applying what it called a business judgment test. Lamden appealed. Citing Frances T. v. Village Green Owners Assn. the Court of Appeal agreed with Lamden that the trial court had applied the wrong standard of care in assessing the Association's actions. Accordingly the Court of Appeal reversed the judgment of the trial court. We granted the Association's petition for review.
View caseDominic Drake leases an apartment under a building rule that excludes unmarried couples. After the landlord attempts to evict him for violating the rule, the court declines to enforce the restriction, recognizing it as a discriminatory covenant that cannot be judicially enforced on grounds of familial status.
Miguel Braschi resided with Leslie Blanchard in a rent-controlled apartment at 405 East 54th Street from the summer of 1975 until Blanchard's death in September 1986. Stahl Associates Company owned the apartment building. In November 1986, Stahl Associates served Braschi with a notice to cure, claiming he was a mere licensee with no right to occupy the apartment because only Blanchard was the tenant of record. In December 1986, Stahl Associates served a notice to terminate, giving Braschi one month to vacate. Braschi initiated an action for a permanent injunction and a declaration of his entitlement to occupy the apartment. He moved for a preliminary injunction. The Supreme Court found that the long-term interdependent nature of the ten-year relationship fulfilled the definitional criteria of family and issued the preliminary injunction. The Appellate Division reversed, holding that the regulation protects only family members within traditional, legally recognized familial relationships. Braschi appealed. The two men had lived together as permanent life partners for more than ten years. They regarded one another as spouses, their families were aware of the relationship, and they attended family functions together. Braschi listed the apartment as his address on his driver's license and passport. They shared all financial obligations, maintained joint checking and savings accounts, and Blanchard executed a power of attorney in Braschi's favor and named him beneficiary of his life insurance policy and primary legatee of his estate.
View caseJudicial enforcement of a discriminatory covenant constitutes state action that denies equal protection under the Fourteenth Amendment. Courts therefore refuse both equitable injunctions and damage awards for breach.
Yes. The Restatement treats a negative easement as a restrictive covenant because both limit permissible uses of land. A discriminatory restriction is therefore analyzed as a restrictive covenant whose burden may run with the land, yet remains unenforceable for constitutional reasons.
Yes. The covenant appears in the chain of title and supplies constructive notice of its terms. Purchasers therefore cannot claim surprise, but courts will not grant any remedy to enforce the discriminatory provision itself.
…rights of potential pupils and their parents; and to Barrows v. Jackson , 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of…