Restrictive Covenants

The term ‘‘covenant’’ has various meanings, but for purposes of this entry the term refers to a promise to do or not to do something with regard to real property. The covenant might at a later point be seen as infringing upon one’s constitutionally protected rights and liberties. A covenant requiring that a property be used only for residential purposes, for example, could be seen as a limitation on the religious freedom of somebody hoping to operate a church on the premises. A covenant prohibiting signage might seem an interference with freedom of speech and expression. In general, courts have been unreceptive to these arguments if the parties knowingly and willingly entered into the covenant or knew of the covenant when purchasing the property.

At present, only restrictive covenants barring the sale or rental of property to members of a given race routinely meet with judicial disapproval. After courts ruled in the late nineteenth century that the states could not by law prevent members of a race from living in one area or another, private racially restrictive covenants of this sort became the most common variety of real property covenant in America. African Americans were the most likely to be excluded as renters and buyers from certain neighborhoods and even whole towns, but in California and elsewhere covenants were also directed against Jews, Mexicans, Puerto Ricans, Hawaiians, Chinese, Japanese, and Filipinos. The Supreme Court found such covenants unconstitutional in Shelley v. Kraemer (1948), stating that the enforcement of such covenants by courts would be a denial of the equal protection of the law guaranteed by the Fourteenth Amendment. Subsequent litigants argued that, even though courts could not enforce a covenant, private parties could sue one another for damages derived from breach of a restrictive covenant. The Supreme Court rejected this argument in Barrows v. Jackson (1953). Since then, restrictive covenants have ceased to be used, but their earlier use played a major role in keeping minorities out of certain communities and enabling those communities to remain entirely white.

DAVID RAY PAPKE

References and Further Reading

• Allen, Francis A., Remembering Shelley v. Kraemer, Washington University Law Quarterly 67 (1989): 709–35.

Cases and Statutes Cited

• Barrows v. Jackson, 346 U.S. 249 (1953)
• Shelley v. Kraemer, 334 U.S. 1 (1948)

See also Buchanan v. Warley, 245 U.S. 60 (1917); Vinson Court