How to remove restrictive covenants from a deed in Michigan
The 2022 Discharge of Prohibited Restrictive Covenants Act allows for the discharge of racist and other discriminatory language from recorded deeds.
Imagine preparing to buy your perfect new home and fulfilling the American dream, only to find out that the owners are not allowed to sell to you solely because of your race. That was a reality for many people across the United States and Michigan until the mid-1900s. Individuals and associations used language in property deeds to place restrictions on who could occupy or purchase that property. These restrictions were often race-based (i.e., restricting Black people from purchasing a property or anyone who was racialized as “non-white”) and were used to continue the practice of residential segregation. These deed restrictions, or covenants, while no longer enforceable, have likely not been removed from the deeds. A 2022 Michigan law created a pathway that residents can use to remove those unenforceable restrictions and racist language from recorded deeds.
What are racial covenants?
Prohibited restrictions in a deed could have been used to prevent a wide variety of people from purchasing property. The most used type were restrictions based on race, also known as racial covenants. The Mapping Inequality Project defines racial covenants as “clauses that were inserted into property deeds to prevent people who were not white from buying or occupying land.” Use of this legal tool for segregation grew in response to the 1917 U.S. Supreme Court decision Buchanan v. Warley that ruled racial housing segregation ordinances unconstitutional. With the government’s power to racially segregate communities limited, property owners and associations continued to use deed restrictions to continue the racist effort. Since the Supreme Court at the time saw these restrictions as voluntary agreements between private individuals (buyer and seller), they allowed them to continue.
According to Richard Rothstein in his book “The Color of Law: A Forgotten History of How Our Government Segregated America,” from 1943 to 1965 there were 192 associations formed in Detroit that used restrictive covenants to maintain segregation. These efforts would have been bolstered at the time by local, state, and federal governments supporting individuals and associations using restrictive covenants, and even distributing guidance on how to implement them. Mortgage providers also incentivized the practice by viewing properties under a restrictive covenant as lower risk, including the Federal Housing Administration's underwriting manual and Veterans Affairs recommending—or even requiring—racial covenants.
The 1948 U.S. Supreme Court decision in Shelley v. Kramer ruled the use of restrictive covenants between buyers and sellers unconstitutional, citing the Fourteenth Amendment’s Equal Protection Clause. Nonetheless, even though these covenants are unconstitutional and unenforceable, many deeds still contain the racist language that has historically been difficult to remove.
Discharge of Restrictive Covenants Acts
The Discharge of Restrictive Covenants Act is a Michigan law that was signed in 2022 to overcome some of the challenges in removing restrictive language, like racial covenants, from deeds. The Act defines a prohibitive restriction as “a restriction, covenant, or condition, including a right of entry or possibility of reverted, that purports to restrict occupancy or ownership of property on the basis of race, color, religion, sex, familial status, national origin, or other class protected by the fair housing act, title VII of the civil rights act of 1968, Public Law 90-284, in a deed or other instrument.” With a definition of restrictive covenant established, the act also:
- Prevents the recording of a deed or similar instrument with a prohibited restriction (MCL 565.863)
- Voids existing prohibited restrictions (MCL 565.864(1))
- Prevents enforcement of prohibited restrictions under state law (MCL 565.864(2))
- Creates a template for a form to discharge prohibited restrictions from recorded deed known as a discharge form (MCL 565.865)
- Establishes processes for homeowners’ or property owner’s association and condominium associations (MCL 565.866), property owners (MCL 565.867), and occupants and tenants (MCL 565.868) to record a discharge form
- Allows the register of deeds to collect a fee for entering and recording the discharge form (MCL 565.869)
The Discharge of Restrictive Covenants Act also expressly does not do some things. Per Section 12 of the Act, the new law does not require register of deeds or title insurance companies and agencies to inspect deeds for violations of the act.
This framework created by this offers a chance for residents across the state to investigate the history of their property for potential restrictive covenants and work with the register of deeds to discharge them.
What can you do?
The first step is to establish whether the deed for your property contains a prohibited restriction as defined above. This can be done by reading the deed and looking for that restrictive language based on a protected class. If you do not have a copy of the deed, you can work with the county register of deeds to obtain a copy. The State of Michigan maintains a list of all county register of deeds office for you to use.
If you find prohibited restrictive language in the deed, the next step is to prepare and file a discharge of prohibited restriction form with the county register of deeds. The language that is required to be submitted to the register of deeds is proscribed in the act (MCL 565.865). Additionally, property owners may want to consult with an attorney or title company for assistance with preparing and filing the discharge of prohibited restrictions form. This paperwork will remove and abolish the prohibited restriction from the deed. A property owner may complete this process themselves for their own property and those who are part of a homeowner’s or property owner’s association, or a condominium association will need to work with the associations board as described in Section 6 (MCL 565.866) of the Act. Other individuals, such as occupants or tenants of properties with prohibited restrictions, also have a process for discharging the language, but that requires court action (see MCL 565.868).
While exploring your deed, you can also explore the history of other racist housing policies like redlining and how they have shaped our state. Michigan State University Extension has created the Redlining in Michigan website to provide information and start conversations to confront the injustices and inequalities that remain in our Michigan cities today as a legacy of redlining. This site also includes a resource page and reference list that can be used to continue your learning. MSU Extension also has programs available on the history of planning and zoning as a tool for exclusion and ways communities can create more inclusive housing options. For more information, please contact Tyler Augst (email@example.com).