Missouri poised to remove unenforceable discriminatory housing restrictions in deeds
Realtor Shari Asher’s clients were in the process of listing their home in Monett in 2019 when they saw something in the deed that rattled them.
“When I sat down at their dinner table, I could tell they were both very embarrassed,” Asher said. “The wife slid a stack of papers across the table to me and said, ‘We need for you to read the deed restrictions.’”
Among the list of standard restrictions, there was a section in the deed that stated, “No persons of any race other than white shall own this property and are not allowed to use or occupy any structure on the property unless they were there in the capacity as domestic servants.”
Asher had heard about these “racially-restrictive covenants” written into deeds in the early part of the 20th century, and knew the language still existed in older homes. But in her more than 20 years as a realtor, she had never expected to see one in her small town in southwestern Missouri.
While it’s no longer legally enforceable, the discriminatory language is hurtful and offensive to potential buyers. She tried to get the language taken out at the title company and was told it was nearly impossible.
“My area has a large Hispanic population,” she said. “There are already trust issues that we often deal with in these real estate transactions, from language barriers to their personal history of dealing with governments and lending institutions that didn’t always keep their word and rules that seemed to change on a dime.”
Asher was among real estate agents who lobbied lawmakers this spring for a bill to require the removal of restrictions relating to a person’s race, color, religion or national origin from newly recorded deeds. The bill was approved by the legislature in May and sent to Missouri Gov. Mike Parson. He has not yet taken action on it.
A U.S. Supreme Court ruling struck down states’ ability to enforce discriminatory covenants nationwide in 1948, and Missouri passed a law that echoed that decision in 1993. But Missouri legislators never set up a road map for how to take the language out of existing deeds, so they keep getting passed on from owner to owner.
St. Louis and Kansas City were among the cities that led the nation in restrictive covenants. According to a recent study, St. Louis still had 30,000 properties with restrictive covenants. Another 70,000 exist in St. Louis County.
Missouri would join a handful of states that have recently enacted laws to remove such covenants from property records, following Maryland, California, Illinois, Connecticut and Virginia.
The enforcement of the bill falls on the recorder of deeds office in each Missouri county.
“We think this is a really important good-government cleanup to start getting some of these restrictive covenants – that are not enforceable anyway – but get them off the books,” said Jessica Petrie, a lobbyist for the Recorders’ Association of Missouri. “It’s already 2022.”
In 2019, Asher remembers her frustrating phone conversation with a title company about getting the passage removed.
“They’re like, ‘Well, you’d have to get everyone that lives in that area…and go before a judge,” Asher said. “She went on and on and on. At some point, I stopped listening because I’m like, no, that’s way too complicated.”
There was no easy remedy, she said, so the language stayed in the deed.
Under the legislation, the people who prepare or submit a deed for recording — typically a title company — would remove the language before sending it into the recorder of deeds. If the language is not removed, then the recorder of deeds office can refuse to accept the deed and send it back to the title company to make the changes.
For homeowners who aren’t intending on selling their home but would still like to remove the language from their deeds, Petrie said it would involve submitting a one-page document to the recorder’s office, which would cost $24. Most of that revenue would go to the county employer retirement fund and county general revenue, she said, but $5.50 of it would stay with the recorder’s office.
“It’s not so much about the $5.50,” Petrie said during a House committee meeting in February. “It’s about consistency across our documents.”
This is the second year the bill was introduced.
From Asher’s understanding, developers of the homes had to include the discriminatory language in the deeds in order to be eligible for federal construction loans.
After World War II, many working-class families — both white and black — were living in public housing projects. At some point, white families started to move out, and the projects became almost entirely black, said Richard Rothstein, author of The Color of Law: A Forgotten History of How Our Government Segregated America.
That’s because the Federal Housing Administration began to finance whites-only suburban housing divisions — which moved white working-class families out of the urban core and into the suburbs. The administration’s written manual required developers to sign agreements, or racial deed covenants, that they would not sell these homes to African Americans, he said.
On May 3, 1948, the U.S. Supreme Court rendered its landmark decision in Shelley v. Kraemer, where the court ruled that state enforcement of racially restrictive covenants violated the Equal Protection Clause of the 14th Amendment. However, the case did not actually outlaw covenants, only a state’s enforcement of the practice.
The lawsuit centered around a Black homeowner, J.D. Shelley, in St. Louis, and the Shelley House is now a National Historical Landmark.
During the discussion on the House floor about the bill, Rep. Kevin Windham, D-Hillsdale, asked the bill sponsor Rep. Craig Fishel, R-Springfield if he thought it was important that the students throughout the state learn about this history.
“That at one point in time, we had restrictive covenants that would have stopped my grandparents from buying houses,” he said, “you think it’s important that young folks learn about their history?”
Fishel replied, “I think it’s very important.”
This story was originally published by the Missouri Independent, part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Missouri Independent maintains editorial independence.