Decades-Old Deed Restrictions on Race Still Found in Texas - NECN
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Decades-Old Deed Restrictions on Race Still Found in Texas

Neighborhood associations say they would like the language removed

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    Decades-Old Deed Restrictions on Race Still Found in Texas
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    File Photo: Property and Mortgage deeds sit on top of plans.

    When Samia Khalil finally read the deed restrictions that applied to her home of 40 years, she was shocked.

    The Houston Chronicle reports there, in black and white, was a paragraph stating that none of the homes in Old Braeswood -- the quiet Houston neighborhood near Rice University where former Gov. William P. Hobby Sr. raised future Lt. Gov. William P. Hobby Jr. -- could be owned or occupied "by any person not of the white race," excepting servants living with their employers.

    "All of us were surprised," she said. "When we bought the house, it must've been on the deed, but we didn't read it, and neither me nor my husband knew." Khalil, who emigrated from Egypt, would have been excluded if the restrictions were still enforced.

    Deed restrictions are common in planned developments across the country, but they have special prominence in Houston, where, in a city famous for its lack of zoning, they have been the only way to regulate a neighborhood's character. Restrictions drafted by developers establish guidelines on topics ranging from a subdivision's hedge heights to permitted uses; they often fend off denser, less expensive housing by limiting neighborhoods to single-family homes of a certain size.

    And before 1948, they frequently restricted the race of a community's homeowners and occupants. Though race-based restrictions have been unenforceable since they were struck down in a U.S. Supreme Court ruling 70 years ago, they contributed to housing disparities affecting the city today and still remain in many older associations' documents, putting those neighborhoods in a bind.

    Even though race restrictions can no longer be enforced, a federal judge ruled that their very existence is a violation of the Fair Housing Act of 1968. Neighborhood associations say they would like the language removed. But state law makes the process difficult and costly.

    As a result, the language lingers, vestigial notes from the symphony of racist policies that shaped American cities until the mid-20th century. And as many homebuyers make the biggest purchase of their lives, they're brought face-to-face with their community's prejudiced histories in ways that catch them off guard.

    "I was dumbfounded when I read the deed restrictions on mine," said Ted Jones, a real estate economist who bought a home in Royden Oaks, a neighborhood that restricted non-white property ownership until 1985, when it was nullified by court order. "I can remember thinking -- are you kidding me? I read in college about those kind of things. But to actually see it... It was offensive, without question."

    When the Houston Chronicle pulled records for Harris County's oldest subdivisions in terms of the median age of homes, all 15 of the oldest deed restrictions contained similar language. Woodland Heights, Stude, Woodland Terrace and Lancaster Place Extension -- all subdivisions in Montrose and the Heights -- were among those saying homes could not be sold to people who were of African descent or who were not white. While some of the neighborhoods have since changed their restrictions, the language remains in many.

    A team of researchers from the University of Texas at Austin spent six months reviewing deed restrictions set up between 1890 and 1950 for subdivisions in Travis County and found all but a handful of deed-restricted neighborhoods also excluded minorities. Harris County deed restrictions from the same time period pulled by the Houston Chronicle follow the same pattern.

    Though they have been unenforceable for generations, the impact of racial restrictions is still felt today. Nearly all communities protected by deed restrictions in the early 20th century excluded minorities, pushing black and Hispanic residents into neighborhoods without restrictions. As a result, many of the uses banned in a deed-restricted community -- industrial sites, liquor stores, multifamily homes -- could pop up at any time in the communities where minorities settled, often destabilizing the neighborhood or prompting sudden price swings -- in both directions.

    In Settegast, a bastion of black homeownership just outside of the Loop in northeast Houston, residents contend with both scrap yards operating beside their single-family homes and developers sweeping up land for denser housing. The swelling desire to live near the city's core has made unrestricted land, which is easily divided into smaller lots, suddenly attractive. On some streets, newly built homes are only feet away from their neighbors, much closer than would be allowed in many neighborhoods with restrictions.

    "Restrictions created a part of town where property values were really protected, and property values rose over time," said Elizabeth Mueller, director of the University of Texas at Austin's graduate program in community and regional planning. "And the parts of town where minorities were allowed to live were also the parts of town where industrial uses could set up shop, and property values were unpredictable."

    Racial restrictions have been unenforceable since the Supreme Court found they violated the 14th Amendment, which guarantees equal protection under the law. The decision came a year after the Heights subdivision of East Norhill filed to extend a restriction forbidding use or occupation by non-Caucasians until 1981 (the restriction has since been removed). Other neighborhoods had no expiration date on the restriction.

    Today, when a buyer receives notice of their deed restrictions, it always comes with a disclaimer: "Any provisions that restrict the sale, rental, or use of the real property on the basis of race, color, religion, sex, or national origin are unenforceable."

    Nonetheless, the language pained Khalil and other Old Braeswood residents.

    "To me, it's like taking off the signs from the drinking fountains that used to say, `Whites Only' or `Colored Only,"' explained Julie Cohn, president of the Old Braeswood Property Owners Association . "They are completely unenforceable, but it would have been a real insult after the civil rights movement to leave those signs up."

    The metaphor of taking down a "White Only" sign is particularly apt because state law requires neighborhood associations to post their deed restrictions on their websites. Associations with race-based restrictions have different approaches to the touchy task. The Tanglewood Homes Association has stamped "racial restrictions are void" across the sentence banning non-Caucasians. The Eastwood Civic Association's 2007 deed restriction renewal includes the language, then notes "the restriction providing that none of the lots in Eastwood should be conveyed to, owned, used, or occupied by Negroes is void and of no further force and effect..."

    The Old Braeswood Property Owners Association, which drew a line through the racial restriction on its website with an asterisk explaining it was unenforceable, decided to take legal action to remove the restriction altogether, a move that would allow it to take down the offensive language from the site.

    In March, the association mobilized to pass an amendment removing the language -- a daunting task involving gathering the written approval of 75% of neighborhood, or 233 homeowners.

    To do so, the association established a special fund for neighbors who wanted to donate to the effort, hired an attorney to look over the paperwork and drew up petitions to deliver to each home. Volunteers organized email blasts, newsletters and meetings to inform the neighborhood of the effort.

    "One afternoon, I stood outside at 5:30 as people were coming home from work and got them as they pulled in the driveway," said Andrea Lapsley, who volunteered as a block captain to shepherd ballots.

    "I was lucky -- I was able to get the ballots in a couple of walks," said Khalil, also a block captain.

    The reason members of the Old Braeswood Property Owners Association felt comfortable with such a laborious undertaking was because they had just gone through it. They had amended the restrictions of one of their constituent subdivisions last year to block a developer from putting up townhomes. But even with the know-how, the process would have been difficult in a neighborhood with more absentee landlords or a less organized association.

    In fact, when the Department of Justice sued the Royden Oaks Association of Property Owners in 1985 for language saying that property could not be owned or occupied by any person "other than the White Race," the association argued that amending the restriction was practically impossible.

    "How do you respond to a federal judge who says we need to change it?" asked Jack Baber, who was president of the association at the time. "Amending restrictions are, by their very nature, incredibly difficult." He testified that the association did not enforce the restriction and welcomed the court's guidance in removing it.

    In the end, District Judge Gabrielle Kirke McDonald ruled the existence of the restriction a violation of the Fair Housing Act and resolved the problem by issuing a court order nullifying the language.

    Baber said he still is not sure if it is worth the effort or expense for neighborhood associations to mount campaigns to remove racial restrictions, given that they are not enforceable.

    "It's offensive. But, realistically, it isn't a problem," he said. "I don't know what it is about this covenant except a stark realization of where we were as a county 70 years ago that these types of restrictions existed."

    Others called for neighborhoods to act. LaDonna Parker, the president of the Houston Black Real Estate Association and a member of the Houston Association of Realtors, said that Old Braeswood's example was an opportunity for homeowners, associations, civic clubs and even real estate associations to advocate change.

    After all, removing the race restriction isn't that hard everywhere. In California , for example, an owner of a property with a race restriction can simply send a copy of the original deed restriction with the unlawfully restrictive language crossed out to the county recorder.

    "If it's unenforceable and unconstitutional, then you shouldn't really need anyone's consensus to remove what's breaking the law," Parker said. "If we pursue this in Houston... we can set the standard for other cities and counties."

    Cohn filed the amendment for Old Braeswood's restrictions with Harris County on May 15. Now, the neighborhood's association website no longer lists race among its restrictions.

    New buyers will still be faced with the neighborhood's history when their title companies notify them of their property's restrictions, but in addition to the original restrictions from 1928 and 1939, homeowners will also receive this year's amendments deleting the clauses restricting race.

    Hideaki Takahashi, whose family moved to Old Braeswood from Japan three years ago, said he was thankful for the lengths the community had gone to be inclusive. "It's a really good movement," he said.

    And despite the time and effort involved, Old Braeswood resident Lapsley did not hesitate when asked what advice she would give other subdivisions considering amending race restrictions.

    "Do it," she said firmly. "It's the right thing to do."