If you go to the local register of deeds office in Michigan and go back in time to look at property deeds recorded in the 1940s or earlier, you may be shocked to find that some of these deeds have restrictive covenants that actually prohibit certain races (or all non-white races for that matter) from owning or occupying the property in question. This was especially prevalent in neighborhoods governed by homeowners associations which tried to segregate their territory to exclude those races and cultures that did not fit their profile. These deeds may have a restrictive covenant that explicitly states “[n]o persons of any race other than white or Caucasian shall use or occupy any premises, or any part thereof.” Some of these provisions may carve out an exception for “domestic servants of a different race domiciled with an owner or tenant”. These archaic covenants are relics of a different time, but they still appear on the deeds of property owners in Michigan today. Are these racially restrictive covenants enforceable in a court of law?
There was a time when the U.S. Supreme Court gave its blessing to these types of racist covenants. In Corrigan v. Buckley, 271 U.S. 323; 46 S.Ct.521; 70 L.Ed 969 (1926), the high court ruled that the racially restrictive covenants in the deeds of multiple property owners was a legally binding document which made the selling of a house to a black family a void contract. This opened the floodgates for neighborhoods and subdivisions around the country to add these covenants to keep out those persons that they deemed undesirable. This arrangement lasted for twenty-two years until the U.S. Supreme Court was called upon to hear these matters again.
In Shelley v. Kraemer, 334 U.S. 1; 68 S.Ct. 836; 92 L.Ed. 1161 (1948), a black property purchaser purchased a parcel by warranty deed in August 1945 but had no actual knowledge that the chain of title contained a racially restrictive covenant at the time of sale. In October 1945, neighbors on other nearby properties subject to the terms of the restrictive covenant filed suit to obtain an injunction preventing the black owners from taking possession and a judgment divesting them of any ownership interest in the property. The trial court refused to grant the relief sought, but the Missouri Supreme Court reversed and compelled the trial court to enforce the provisions therein. This matter was also incorporated by a companion case in Michigan where a black couple in Wayne County purchased land subject to a covenant stating: “This property shall not be used or occupied by any person or persons except those of the Caucasian race.” The neighbors also subject to this restrictive agreement filed suit to enforce the terms and the Wayne County Circuit Court granted the relief sought. The Michigan Supreme Court upheld this decision and determined the property owners’ Fourteenth Amendment rights were not violated. Both cases reached the U.S. Supreme Court.
The U.S. Supreme Court overruled Corrigan v. Buckley and both supreme courts in Missouri and Michigan to rule that the state court’s enforcement of these racially restrictive covenants was state action and therefore denied these petitioners the equal protection of the law under the Fourteenth Amendment:
- “We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers, and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.” 334 U.S. at 19.
- “We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color.” 334 U.S. at 20-21.
- “Respondents urge, however, that, since the state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected. This contention does not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color. But there are more fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment.” 334 U.S. at 21-22.
- “The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. Seventy-five years ago, this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. Upon full consideration, we have concluded that, in these cases, the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment.” 334 U.S. at 23.
The immediate effect of this decision is that racially restrictive covenants across the nation became completely unenforceable by both state and federal courts. The Michigan Supreme Court, which was reversed in the Shelley v Kraemer decision, took the lesson to heart and applied the new law of the land. In Phillips v Naff, 332 Mich 389; 52 NW2d 158 (1952), the plaintiffs sued in Wayne County Circuit Court to recover damages for breach of a racial restrictive covenant by alleging that the defendants violated these terms by conveying restricted property to black people and placing them in possession and occupancy. The circuit court granted the motion to dismiss, and the Michigan Supreme Court upheld the decision on appeal finding that the Fourteenth Amendment prevents the maintenance of an action for breach of racial restrictive covenants.
The Michigan Court of Appeals later ruled in Spencer v Flint Memorial Park Association, 4 Mich App 157; 144 NW2d 622 (1966) that a racially restrictive agreement in a burial plot was unenforceable. The plaintiff, a black man, sought to enjoin the association from interfering with and refusing to allow him to bury another black person in the plot he owned. The association raised as a defense the restrictive agreement existing at the time plaintiff purchased the burial plot which excluded the bodies of “Negroes” from burial in the cemetery. The trial court issued summary judgement in the plaintiff’s favor. The Michigan Court of Appeals agreed, finding that the enforcement of a restrictive agreement of a cemetery association which would deny the owner of a cemetery plot, who is black, the right to bury a non-Caucasian therein denied him the equal protection of laws under the 14th Amendment to the United States Constitution.
Unfortunately, there is no legal mechanism to go into every register of deeds office in the State of Michigan and delete all of these racially restrictive covenants from the record. They remain a reminder of the more embarrassing moments in our nation’s history where it was permissible for states to enforce discriminatory agreements to further suppress minority races. What is important, however, is that if you stumble upon one of these archaic covenants in a real estate document during the course of a transaction, just know that it is likely unenforceable in any state or federal court by anyone. By chance that you do stumble upon a questionable covenant or provision in a contract or deed, you should consult with a skilled property lawyer first before concluding whether it is or is not enforceable.
If you have further questions about property law or need legal representation, then do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC for assistance today.
