United States: Washington Supreme Court Orders Physical Removal Of Racially Restrictive Covenant From Public Records

The Washington Supreme Court recently remanded a declaratory action stemming from a racially restrictive covenant in a deed to comply with RCW 49.60.227, as amended by the Washington legislature during the 2021 legislative session, which permits a court to strike a racially restrictive, legally unenforceable covenant from the public records and eliminate the covenant from the title. See May v. Spokane County, 2022 Wash. LEXIS 199 (Wash. Mar. 31, 2022).  In 1953, the executors of an estate owned lots located in Spokane, Washington. That same year, the executors recorded a declaration of protective covenants for all of the lots, which remained undeveloped. Covenant subsection (c) provided, in pertinent part, that “[n]o race or nationality other than the white race shall use or occupy any building on any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.”

In 2013, a purchaser of the property at issue conveyed the property via statutory warranty deed (the “2013 Deed”). The property was conveyed subject to:

Declaring the covenant void in the 2013 Deed did not physically remove it from the public records, however. In 2017, the Plaintiff purchased the property via statutory warranty deed (the “2017 Deed”). The 2017 Deed did not include the language deleting the racially restrictive covenant contained in the 2013 Deed. The 2017 Deed merely stated that “[t]his conveyance [was] subject to covenants, conditions, restrictions and easements, if any, affecting title, which may appear in the public record, including those shown on any recorded plat or survey.” Plaintiff discovered the racially restrictive covenant during the title search of the property. Immediately thereafter, the Plaintiff filed a declaratory action to have the covenant voided under RCW 49.60.224, which voids such covenants, and to have the covenant physically removed from the title to the property and from the public records under the former RCW 49.60.227 (2006).

Both the trial court and the Court of Appeals concluded that RCW 49.60.227 did not allow the physical removal of the covenant from the title but, instead, allowed only for an order voiding the covenant to be filed in the property records.  In doing so, the Court of Appeals noted that “RCW 49.60.227 plainly contemplates that a court order striking a voided provision in a recorded instrument is self-executing; i.e., no action beyond entry of the order is necessary to eliminate the existence of the discriminatory provision.”

In response to the Court of Appeals decision, the Washington legislature amended RCW 49.60.227, clarifying the procedure under which these covenants are struck and eliminated. Specifically, under the amended statute, an owner, occupant, tenant or homeowners' association board of the property which is subject to an unlawful deed restriction or covenant pursuant to RCW 49.60.224 is entitled to have discriminatory covenants and restrictions that are contrary to public policy struck from their chain of title.  If an owner, occupant, tenant or homeowners' association board of the property elects to pursue judicial remedy, “[a] complete copy of any document affected shall be made an exhibit to the order and the order shall identify each document by recording number and date of recordation and set forth verbatim the void provisions to be struck from such document. The order shall include a certified copy of each document, upon which the court has physically redacted the void provisions.” RCW 49.60.227(1)(b)(i).  A certified copy of the order must then be provided to county recording officials, who are required to place the corrected document in the public records with a notation that the original document was corrected. RCW 49.60.227(1)(b)(ii)-(iii). County officials are then required to update the indices of each original document referenced in the court order, adding a note the original document is no longer the primary official record. RCW 49.60.227(1)(b)(iv). The county is required to separately maintain the original document. RCW 49.60.227(1)(b)(v).

On appeal, the Washington Supreme Court remanded to the trial court for relief consistent with the legislature's 2021 amendments to RCW 49.60.227. The Court noted that “the legislature's intent is clear and that the amendments provide a remedy that strikes the balance between keeping a historical record of racism in covenants, while also allowing homeowners to remove the repugnant covenants from their chains of title.”  As to the need for the Clerk to maintain the original offending instrument, the Court further elucidated that “[w]e must ensure future generations have access to these documents, although the covenants are morally repugnant, they are a part of a documented history of a disenfranchisement of a people.  It is our history.” Accordingly, the Court remanded the case to the trial court.

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