Jim Porter: New law authorizes redaction of illegal recorded racial CC&Rs
Over the years in the course of my law practice I have probably reviewed over a thousand CC&Rs, sometimes called Declaration of Restrictions. Most, if not all, of the older Declarations prohibit the sale of property to African Americans and Asians, often described as “Negros” or “Mongolians,” at least in CC&Rs recorded in our local counties. It shocks me with disgust every time I see these restrictive covenants barring black people and others from purchasing homes. I submit that all of the older CC&Rs around Donner Lake contain racial restrictions. Other discriminatory laws prohibited Black people from obtaining loans to purchase homes. And not that long ago.
For years, it has been unlawful to enforce these racial restrictive covenants, but they still remain of record – insulting to anyone reading the covenants or buying property.
COVER PAGE DISCLAIMER OF ILLEGAL RACIAL RESTRICTIONS
Existing law in California has for years required county recorders and title companies to place a coversheet or a stamp on the first page of Declarations containing racial restrictions on buying residential property. But the “No Negros May Buy in This Subdivision” flagrantly remains in place on the old recorded documents.
NEW LAW ALLOWS ELIMINATING RACIAL COVENANTS
Governor Gavin Newsom signed a law last September requiring county recorders, title insurance companies, real estate agents and homeowner associations to provide any potential buyer of property with a racial covenant a Restrictive Covenant Modification form for redacting and removing the racial covenants.
The law, AB 1466, amends the Government code and authorizes county recorders, title companies, real estate agents and others to record a Restrictive Covenant Modification. County recorders are required to establish a restrictive covenant program to assist in the redaction of unlawful restrictive covenants. The new law takes effect July 1, 2022. County recorders must identify and redact unlawful restrictive covenants “in the records of their office.”
RESTRICTIVE COVENANT MODIFICATION FORM
The new Restrictive Covenant Modification Form must be made available to the public at recorder’s offices and online. It allows replacement of Declarations with racial restrictions and recording of a new Declaration. The Modification form revises illegal restrictions based on “age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, martial status, disability, veteran or military status, genetic information, national origin, and source of income.”
This change in law is long past due.
Here’s to a happy Thanksgiving to all of you.
We have much to be thankful for!
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com
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