by Lauren Reznick
Voice of the Judiciary
“No part of the land hereby conveyed or any of the improvements thereon shall ever be sold, leased, traded, deeded or donated to any one other than of the Caucasian race.”
These above words live within Massachusetts land records and remind us of a not-too-distant shameful past.
Throughout the early twentieth century, racially restrictive covenants, like the above example, proliferated in Massachusetts deeds. They sought to accomplish through private contract what state law could not do openly since the passage of the Fourteenth Amendment: restricting the purchase, lease, or occupation of property by people of color. While practices like redlining systematically but covertly denied residents of color access to lending resources and services, the use of private restrictive covenants overtly excluded them from acquiring property in communities marketed and sold exclusively to white buyers. Together, these practices barred people of color from the principal means of building wealth in the United States – homeownership – a legacy that has had lasting racial and economic effects throughout the Commonwealth and the United States.
The first blow against racial covenants in land deeds was struck in 1948 by the United States Supreme Court in Shelley v. Kraemer, 334 U.S. 1 (1948). There, the Supreme Court declared that state enforcement of racially restrictive covenants violated the guarantee of equal protection under the Fourteenth Amendment. However, in the same breath, the Court stated that “[s]o long as the purposes of those agreements are effectuated by voluntary adherence to their terms…the provisions of the [Fourteenth] Amendment have not been violated.” Id. at 13. And so, racial restrictions – deemed unenforceable but not unlawful – continued in use unabated.
In a 1969 Report of the Massachusetts Attorney General, the Civil Rights Division noted that “[m]any citizens of the Commonwealth had raised objections to the Massachusetts Commission Against Discrimination” about such covenants in Massachusetts deeds, but the MCAD lacked jurisdiction to address them. See 1969 Massachusetts Attorney General Reports and Opinions 6, at p. 11 (1968-1969). In response, the Civil Rights Division drafted legislation to make such covenants unlawful, which the General Court enacted as Chapter 523 of the Acts of 1969, “An Act invalidating restrictive covenants and conditions relating to real property on the basis of race, color or religion and prohibiting the use of such covenants.” St. 1969, c. 523. This Act not only voided provisions “which purport to forbid or restrict the conveyance, encumbrance, occupancy, or lease [of real property] to individuals of a specified race, color, religion or national origin,” see G.L. c. 184, § 23B, but also declared it a crime, punishable by up to a $500 fine or up to one year imprisonment, to knowingly include such provisions in conveyance instruments. See G.L. c. 151B, § 4A. In 1978, section 23B was expanded to add “sex” to the list of prohibited characteristic-based restrictions. See St. 1978, c. 127, § 3.
Thus, in today’s legal landscape, restrictive covenants based on race, religion, national origin, or sex are unenforceable, unlawful, and punishable as a crime in this Commonwealth. Most may also have expired by operation of law. See, e.g., G.L. c. 184, §§ 23, 27 and 28. Yet their words dwell within our land records, retelling our hurtful past. Even today, they can be carelessly carried forward in new conveyances in a property’s chain of title. And those reminders can haunt the consciences of today’s homeowners who may unwittingly come face to face with them when they buy a home, reopening old wounds. See, e.g., Cheryl W. Thompson, “Racial covenants, a relic of the past, are still on the books across the country,” npr.org, November 17, 2021 (last accessed December 16, 2021).
Now, the Massachusetts Land Court is offering homeowners a new option to address these provisions. Under newly-adopted Land Court Standing Order 2-21, an owner or other interested person may bring a land record containing a racially-restrictive covenant before the court. A judge will then review the restriction and fashion a remedy, such as a declaratory judgment, a new certificate of title, the entry or cancellation of a memorandum upon a certificate of title, or other appropriate relief. The resulting court order or judgment will then be recorded or registered with the title—a repudiation of the covenant and its harmful and lasting effects on the land and people of this Commonwealth. By this means, the Land Court hopes to help our citizens reckon with a hurtful past without erasing or ignoring that history.
Mindful of the navigational hurdles that can accompany the filing of a court case, the Land Court has adopted a set of simplified procedures and forms for a party to bring this new kind of “Void Provisions” or “VP” case before the court. All that is needed to complete the one-page Complaint form available on the court’s website, is a copy of the current deed or certificate of title for the property and a copy of the instrument that contains the prohibited restriction. Most of the time, these documents can be accessed online through the Secretary of the Commonwealth’s Massachusetts Land Records website, available at masslandrecords.com. There is no fee for filing a Void Provisions case, and the court has streamlined the procedures so any person, even those without legal representation, can navigate the steps. Registry of Deeds staff are also qualified to help and have received a Memorandum from the Land Court Chief Title Examiner explaining the new registered land procedures related to Land Court Standing Order 2-21. Members of the bar experienced in registered land conveyancing may find a review of the Chief Title Examiner’s Memorandum helpful to understanding how the Assistant Recorders have been instructed to handle registered land documents that contain racial restrictions.
Once the court has reviewed and determined the Void Provisions Complaint, a Land Court judge will issue a judgment or order of court, which will be transmitted to the local Registry of Deeds or Registration District of the Land Court for recording or registration. The filer will also receive confirmation of the completion of the case. We anticipate that most Void Provisions cases will be straightforward and reach a prompt resolution with no need for court events, and minimal expenditure of filer, court, or Registry resources. However, for any thornier issues (which we expect to be quite rare), the professional team of Land Court Attorney Title Examiners and judges stand ready to provide their considerable expertise and experience in land titles.
For over a century, bigotry, racism, and discrimination have been embedded into private land agreements known as restrictive covenants, bisecting our Massachusetts neighborhoods along racial lines. These provisions are painful, poignant reminders of the formalized and systemic discrimination perpetrated against people of color in this Commonwealth, effects of which can still be felt today. For homeowners impacted by this scar in our land records, the Land Court is opening its doors. These historical injustices should not be erased or forgotten, but can be acknowledged and faced head on with a new Land Court procedure.
Lauren Reznick is the Assistant Deputy Court Administrator-Legal Counsel to the Land Court and advises the Chief Justice on new court rules and standing orders.