Striking Discriminatory Restrictive Covenants on Property

November 14th, 2019 - Bryan L. Page

Unfortunately, in the early 1900s, racially restrictive covenants were recorded against properties. This happened even in Washington. Whatcom County was not immune from this behavior.

Some covenants would single out particular races of people that were excluded from owning or occupying the property. Others would limit ownership or occupation to one particular race. Sometimes, restrictions would be based on religion.

These restrictive covenants have now been struck down and are invalid and unenforceable. In 1948, the United States Supreme Court ruled these covenants could not be enforced. In 1968, the United States Congress passed the Fair Housing Act, which banned covenants discriminating on the basis of race, color, religion, or national origin. In Washington, RCW 49.60.224 voids covenants if they discriminate on the basis of race, creed, color, sex, national origin, sexual orientation, family status, veteran or military status, or disability. It is an unfair practice to attempt to honor such a covenant.

How can I find out if my property has improper restrictive covenants?

To find out if there are improper restrictive covenants recorded against your property, you can research title records at your local county auditor’s office. Any restrictions may also have been noted in your title report and title insurance policy you received when you purchased your home.

How can I get improper restrictive covenants removed from my property?

Thankfully, in 2018 Washington passed a law making it easy to remove these types of restrictive covenants from properties.

Per RCW 49.60.227, an owner can record a restrictive covenant modification document with their county auditor. The document must contain the following information:

  1. A reference to the recording number of the original document containing the restrictive covenant.
  2. This statement – “The referenced original written instrument contains discriminatory provisions that are void and unenforceable under RCW 49.60.224 and federal law. This document strikes from the referenced original instrument all provisions that are void and unenforceable under law.”
  3. The legal description of your property.
  4. The tax parcel number of your property.
  5. The name(s) of the current owners of your property.

A form template and instructions can be found on the auditor’s website. There are no recording fees charged for recording a restrictive covenant modification.

Although these covenants can no longer be enforced, even their existence on title to property can still cause harm. To help end the harm, the Washington legislature has created a process that is very simple to remove them.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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