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Racist restrictions buried in property records

State law to make changes has gone nowhere

A racial covenant found in a 1909 entry of the title abstract for a property in Medina, Orleans County. Such covenants are surprisingly prevalent in the documentation for older residential properties in New York state.

A racial covenant found in a 1909 entry of the title abstract for a property in Medina, Orleans County. Such covenants are surprisingly prevalent in the documentation for older residential properties in New York state.

Many segregated neighborhoods in Rochester, and across the country, are the result of racist institutional policies enforced decades ago with explicit deed restrictions required by government officials and not due to personal preferences or affordability.

The Federal Housing Administration began underwriting mortgages in the 1930s to promote home ownership by shifting the risk of loaning money to homebuyers from the banks to the government.

But the government-backed loans weren’t available to everyone. Federal officials labeled the desirability of neighborhoods based on who lived there.

For a neighborhood to get the top designation and qualify for government-backed financing, developers had to include a clause in all the property deeds that prohibited African-American people from living there. In many cases, the restrictive clauses included Jews and other minorities.

“It’s literally zoning for where black people are going to be forced to live, as well as Italians and Jewish folks,” said Shane Wiegand, an elementary school teacher in the Rush-Henrietta School District who has been researching the topic for about nine years.

Shane Wiegand

Shane Wiegand

“It happened nationwide for sure, but Rochester was unique. The New York State Commission Against Discrimination, in 1958, said that Rochester was the worst of the five northern New York cities, other than New York City, when it came to treatment of people of color, particularly in housing,” he said.

With a little research at their county clerk’s office, many homeowners will discover that those restrictive covenants can still be found in the paper trail of their property, even though they are illegal and unenforceable.

But removing them is not an easy task, and some people don’t believe they should be completely stricken from property records.

In places where property records have been completely digitized, finding all the deeds that include such covenants is likely achievable. But in places like Monroe County, where the digitization of records is not complete, addressing the issue is much more difficult and time consuming.

And even if you discover a restrictive covenant in your property records, getting it removed or amended is virtually impossible.

A bill that would allow homeowners to remove restrictive and illegal covenants from their property deeds is now in the New York state Senate’s Judiciary Committee. But various versions of the same bill have been stalled in the state Legislature since at least 2005.

In 1948, the Supreme Court of the United States ruled against the judicial enforcement of racially restrictive covenants, and they were outlawed by the Federal Fair Housing Act of 1968.

“Nevertheless, these racially restrictive covenants remain a part of the county records, and will continue to remain in the public record until removed by the home owner,” according to the proposed legislation.“Title companies do not show this language to buyers during the searches because they are legally unenforceable. Thus, most buyers do not know about its existence. However, the language should be removed from the public records because it is offensive, illegal, unenforceable, and only serves as a reminder of the painful racist American history,” according to the bill.When a property is sold, a new deed is created and lawyers usually will omit the covenant from the new deed. So homeowners who don’t read the entire abstract for the property wouldn’t know about the covenant.

Wiegand, who teaches fourth grade, stumbled on the issue while researching the history of racism in the Rochester so he could better answer questions from students.

“I started digging into it and then from there I just started reading all the scholarly texts on it,” Wiegand said.

When he first heard of restrictive covenants, Wiegand didn’t expect to find any in the Rochester area, which is known for its history of progressive activists.

But when he looked up property records for homes built here in the 1920s through the 1940s Wiegand found “thousands of these restrictive covenants.”

“There’s no way I found even close to half of the covenants that we have in Rochester,” Wiegand said.

Once he located a residential development with restrictions he looked them up in newspapers of that period and found ads that touted “rigid restrictions for desirable social character” and other phrases indicating racist policies.

It was common practice for a real estate developer to buy a plot of land to build hundreds of homes and put restrictive covenants on every parcel before they built the homes, Wiegand said.

Since January, Yale Law School students have been working on a project that is expected to lead to a report and recommendations on how the community might address the issue. Originally, the plan was to create a draft report by May, but the COVID-19 pandemic will likely force a change in plans.

Conor Dwyer Reynolds

Conor Dwyer Reynolds

The project is being led by Conor Dwyer Reynolds, a former Penfield resident and lecturer at Yale Law School, working with City Roots Community Land Trust, an organization that promotes affordable housing, and local real estate attorney Jim Pergolizzi.

“We’re hoping to understand how to best identify, publicize and address these racially restrictive covenants in and around Monroe County,” said Aaron Troncoso, a first year law student from New York City.

They are studying how other communities across the country have dealt with the covenants while talking to academics, community leaders, and government officials to learn how their experience could be applied in Monroe County.

“The goal eventually is to create a report that can list some of the tools that communities have used in the past to address the covenants so the Rochester community can take advantage of some of the tools and also just as a method for raising awareness about these covenants and to spur some community action,” Troncoso said.

“We well may end up making a specific recommendation, but we also may end up presenting a menu of options that look equally good based on the experiences of these communities,” he said.

Reynolds said the Monroe County Clerk’s Office “has been interested and supportive of our research,” but they’re not formally collaborating. County Clerk Jamie Romeo could not be reached for this story.

So far, the students haven’t found any communities that have unilaterally deleted or changed deeds with the restrictive covenants. They have found some places where property owners now can append their deed. In most places that allow homeowners to take some action homeowners can strike through the covenant and add a note denouncing it.

Aaron Troncoso

Aaron Troncoso

“What we’ve heard from several different stakeholders across the country is that it’s important to many people to preserve the text of the racial covenant and strike it out and amend it, or attach something to it,” Troncoso said.

“But erasing the covenant is not something that a lot of communities go for … It feels a little bit like erasing that history and runs counter to the goal of raising awareness of the racial forces that shaped various cities across the United States,” he said.

In most places, including Monroe County, it’s virtually impossible to change a deed without a new state law.

“To get any covenant like this expunged you would need the signatories or the person who was bound by it to sign something to expunge it. To try to find the developers, or the heirs of the developers, who may have some sort of a right to do that, is virtually impossible at this point,” Pergolizzi said.

BLoudon@BridgeTowerMedia.com / (585) 232-2035

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