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A clause with racist language in some Boise homeowners' paperwork

As first reported by Anne Wallace Allen with the Idaho Business Review, in many older neighborhoods in Boise - and across the country - restrictive covenants have a blatantly racist section.
Credit: Mary Kienzle\KTVB
House in neighborhood where restrictive covenants from 1945 still exist

BOISE - Do you live in a mid-century subdivision? There might be verbiage written into the legal paperwork attached to your deed that may shock you.

As first reported by Anne Wallace Allen with the Idaho Business Review, in many older neighborhoods in Boise - and across the country - restrictive covenants have a blatantly racist section.

"Very surprising. Because, I mean, it's been 50 years since the Fair Housing Act so it is kind of surprising to still see it in the paperwork. We've come a long way but it's a relic from the past," Allen said.

One neighborhood off State Street has covenants from 1945 that say what homeowners can and can't do with their property. Included in the document that, to this day accompanies a homeowner's deed, is a section that says only white people can live there. While it's against the law to enforce that now, it's concerning for some.

"It's just sitting there hidden away in the paperwork and, you know, who really reads the fine print," Allen added.

The fine print has flown under the radar for many homebuyers and sellers for decades.

"Unfortunately we were segregating people back then," Intermountain Fair Housing Council Executive Director, Zoe Ann Olson, said.

Institutionalized racism that may feel so far in the past is still in existence - in black and white -saying: "No persons of any race other than the white race shall occupy or use any building or any lot except that this covenant shall not prevent occupancies by domestic service of a different race domiciled with an owner or tenant."

"It's shocking; it says only people who are white. And when you read that, I mean Realtors they want to cry because it's really hard to sell a home or if a buyer comes to you and they see that, they're just afraid, they're just 'can I buy this home? Will I lose my dream?" Olson added.

Written in the mid-1900's, these restrictive covenants, also known as CC&R's (Covenants, Conditions & Restrictions), were attached to a homeowner's deed and enforced by homeowners' associations (HOA).

"It was mostly because the Federal Home Administration - the home loan corporation - and the Veterans Administration were required to put these restrictive covenants in there. They had racial prohibitions and so in order to get your loan you had to have these things in there. And it's abhorrent," Olson told KTVB.

This specific covenant from Boise's Sycamore Drive Subdivision No. 2 was even reaffirmed in 1973, after the 1866 Civil Rights Act, passage of the 13th and 14th Amendments, two-high profile court cases ruling racial prohibitions are unenforceable and the Fair Housing Act of 1968.

"Every time we sit down, like the preliminary title commitment, CC&R's are sent out for buyers to review so they can have all the information about property and when it was developed and how it was built and what was important to the property at that time," Mid-Century Homes by Moniker Real Estate Realtor T.J. Pierce told KTVB.

Pierce, a Realtor specializing in mid-century homes, says the good thing is that 60-year-old neighborhoods typically don't have active HOA's.

"They're not enforceable CC&R's because the HOA's don't exist anymore," Pierce told KTVB. "There hasn't been very many conversations around it because once people know the HOA's no longer exist everybody understands the CC&R's are almost unimportant. There's nothing about them that can be enforced, therefore they're almost just kind of disregarded."

Pierce says he hasn't had a client bring this issue up to him, but believes it's worth discussing whether or not to remove the language.

"If we have all the history that tells us this was a social issue back then, I mean everybody is aware of that being the case, so do we eliminate all that? I don't know. Like I said, it's worth a conversation," Pierce added.

Fortunately, the discriminatory language is outlawed and unenforceable today.

"For me and for others it's symbolic. You don't want to look at that language and we certainly don't want a person of color to look at that language at the house they're buying that says only white race can live here," Allen said.

She is hoping to bring awareness to the fact these still exist and wanted to know: Why hasn't something been done? The downfall of not having an active HOA is that it is a daunting task to get neighbors together to vote to change the covenants - which is required.

"And people told me that actually people have tried. You know, sometimes the covenant will say this covenant cannot be changed unless you know there's a large number. Like one of the HOA lawyers told me 90 percent. She's seen CC&R's where 90 percent of the people had to be in a room together before they could change a covenant. And these places, these subdivisions have changed hands, people don't necessarily know each other and so it's not easy to get all those people into a room together to make that change. But I've been told that it has happened," Allen said.

"Through the HOA or by owner of property they would have to get legal assistance and/or have either 51 percent or more of the homeowners agree to remove them. And so it's just that barrier. Usually they don't enforce them, the title company will strike them and owners will have something in there saying we will not enforce them. So even if they can't get a majority of the HOA to agree to prohibit them or eliminate them or revise the CC&R's they will just say we are not going to enforce these and they'll make it known upon sale," Olson told KTVB.

Olson is calling on Realtors, attorneys, local and state leaders, and active homeowners' associations with these covenants to work together.

"It's time to take action. Let's get them removed," she said.

If you take a look at your covenants and find something similar in there and you feel empowered to fix or eliminate it, Olson advises you to talk to an attorney and seek counsel - especially if your neighborhood still has an active, formal homeowners' association.

Read Wallace's Idaho Business Review column here.