Some Arizona property deeds contain racist restrictions. A new law seeks to nullify them

Dianne Post didn't believe it until she saw it, right there in the deed to her central Phoenix home.

“Sure enough, on page 13 there it is: 'This property may only be sold only to Caucasians'," Post said, reading from her paperwork.

Racially based restrictions on property sales are unenforceable. But a new law that takes effect later this year will allow Arizona property owners who have such restrictions written into their deeds or covenants, conditions and restrictions, known as CC&Rs, to effectively nullify the language.

The courts and Congress decades ago found restrictions based on race unconstitutional and deemed them illegal. So why bother with a new law?

"Ask a Black person," said Post, who is white and lobbies for the NAACP.

It's important to give homeowners a way to repudiate this language, said Carol Rose, a retired property law attorney who in 2013 co-authored "Saving the Neighborhood:  Racially Restrictive Covenants, Law, and Social Norms."

The amendments allowed by Senate Bill 1432 allow property owners to signal their disdain for such restrictions, she said.

Early pioneers

Years before SB1432 came along, residents of the Encanto Manor historic neighborhood in central Phoenix pooled their money and energy to strike racial restrictions from their CC&Rs.

"It was horrible," resident Michael Weeks said of the language, written in 1945.

"It was meant to be very homogenous," he said. The language made it clear that only white people were to be allowed to live in the neighborhood, which sits just north of the Encanto Park golf course.

Specifically, the document barred the sale, lease, or transfer of the homes, as well as the occupancy of them, to "anyone not of the white or Caucasian race."

It went into more detail "(T)his exclusion shall include those having perceptible strains of the Asiatic, Mexican, Spanish, Negro, Indian, Filipino or Hindu races."

But there was an exception for "house servants or yard servants employed by lot owners."

To neighborhood resident Dennis Burke: "It was just ugly."

Ban on racist terms

The neighbors were already rallying around an effort to amend their deeds to prevent short-term rentals. Burke suggested they tack on an amendment that would get rid of the 1945 language.

While the neighbors learned they couldn't erase the restrictions from their CC&Rs due to historical reasons, Burke said the amendment allowed the neighborhood to make a statement that no one supported the restrictive language.

The drive took time and money. Each of the 84 homeowners had to be contacted.

Susan Edwards, who headed up the drive, estimated they raised $4,000 from volunteer donations to cover attorney fees, printing and other costs.

Once the neighbors crossed the 51% threshold required to amend the CC&Rs, they notarized the deeds and filed them with the Maricopa County Recorder's Office.

"We had notary parties!" Edwards said. The filing happened just days before county government, like much of the rest of the nation, shut down in March 2020 due to the COVID-19 pandemic.

Unanimous support at the Capitol

The new legislation will allow homeowners a simpler path than the Encanto Manor neighbors had. It requires county recorders to create a form that property owners can download, sign and then record as an amendment to their property deed. The recording fee in Maricopa County is $30.

The amendment , based on model language from the Uniform Law Commission, removes all "unlawful restrictions" from the deed. Those restrictions cover not only race but color, religion, national origin, sex, familial status or disability when it comes to the sale, use or occupancy of a property, according to the commission.

The law also streamlines the process for a homeowners association to amend restrictive language.

Sen. J.D. Mesnard, a Chandler Republican who sponsored the bill, credited Post with bringing the legislation to his attention. It passed with unanimous support and was signed in late March by Gov. Katie Hobbs.

Post said the legislation originated with the Tucson chapter of the NAACP. A Tucson resident objected when he learned about the "Caucasian only" stipulation attached to his deed, Post said.

It took more than a year of research and lobbying to get the issue before the Legislature.

The bill will become law 90 days after the Legislature finishes its work for the year. It's unclear when that will be.

Common into the late 1960s

Racially restrictive covenants have been around for more than 150 years, said attorney Rose.

Fueled by the "great migration" of Black people from the South to the northern U.S. states, and later by migration in the wake of the two World Wars, property owners and developers used restrictions to control who could buy their land and homes, Rose said.

"It was a kind of a genteel way of discrimination," Rose said. It signaled to white people that they were buying into a white neighborhood, she said. And it sent a signal to potential Black buyers that they weren't allowed.

The practice was widely embraced into the mid-20th Century. In the wake of the Great Depression, as the federal government tried to amp up home ownership, the Federal Housing Administration encouraged the use of racial restrictions as a condition for insuring housing loans, Rose said.

In 1986, when Phoenix attorney William Rehnquist was nominated for chief justice of the U.S. Supreme Court, news accounts documented the fact that a home he had owned in the Encanto-Palmcroft neighborhood contained a restriction on selling to anyone who was not Caucasian.

Rehnquist owned the home, which was built in the early 1930s, from 1961 to 1969, according to news accounts.

The disclosure stirred controversy at the time but also highlighted how common the restrictions were in houses built before the 1968 Fair Housing Act.

A decade later, documents surfaced that showed Rehnquist's attorney had notified him years before that a home he bought in Virginia contained a restriction against selling to anyone "of the Hebrew race."

Keeping things 'fancy'

The restrictions weren't limited to race. They also were useful to try and protect the character of an area, Rose said. That was especially true as real estate development evolved into the creation of subdivisions.

"To make sure things stay fancy, they put in a lot of restrictions," she said.

However, the U.S. Supreme Court in 1948 struck down the use of race-based restrictions as unconstitutional, noting it violated the equal protection clause of the 14th Amendment.

Twenty years later, the Fair Housing Act of 1968 made racially restrictive covenants illegal and unenforceable.

The soon-to-be Arizona law reinforces that status and gives homeowners a way to show they don't agree with the discriminatory language, said Jason Jurjevich, an urban geographer at the University of Arizona.

"This is a momentous step forward for Arizona," Jurjevich said in a statement to The Republic.

"Now, hundreds of neighborhood associations across Arizona can remove racist and illegal language from their Covenants, Conditions, and Restrictions without erasing history."

Jurjevich is leading the Mapping Racist Covenants project in Tucson, documenting areas of town where such restrictions were common.

The project, as well as others like it in other cities, can help to understand the legacy of such discriminatory practices, which can help lead to more equitable housing policies, he said.

Reach the reporter at maryjo.pitzl@arizonarepublic.com or at 602-228-7566 and follow her on Threads as well as on X, the platform formerly known as Twitter @maryjpitzl .

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This article originally appeared on Arizona Republic: Some Arizona property deeds contain racist restrictions. A new law seeks to nullify them