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Racist Clauses Are Common In Local Zoning Documents. Several Texas Bills Would Make It Easier To Change That.

The Austin skyline during early autumn rains and thunderstorms.
Gabriel C. Pérez
/
KUT

Rina Sadun bought a house in Austin’s Hancock neighborhood last June.

When she was rifling through stacks of old documents shoved into a kitchen drawer, she found what’s called a restrictive covenant — a private contract passed from owner to owner detailing what you can build on your land. For example, it restricted anyone from building a duplex or a home taller than two stories.

It also restricted anyone of “African descent” from owning or renting there. Sadun, who is white, said she’d heard of racial restrictive covenants but had never seen one applied to a place where she lived.

“History isn’t just an abstract thing,” said Sadun, who also identifies as Jewish. Restrictive covenants historically also forbad people of certain religions, including Judaism, from owning homes in certain neighborhoods. “This is the house I live in right now and this is the history of the neighborhood I’m in.”

State lawmakers are considering several bills that would make racist clauses written into deed restrictions less expensive and time-consuming to remove. The language, while no longer enforceable, is still printed on many of these deeds.

House Bill 1202, which has passed out of the House and is currently being considered by the Senate, would allow members of a neighborhood, such as a homeowners’ association, to vote on deleting discriminatory language based on “race, color, religion or national origin” from these local deed restrictions.

If you’ve ever bought a home in Austin — or, really anywhere in the U.S. — you may be familiar with restrictive covenants.

These documents dictate what you can build on the piece of land you own, and — in the case of commercial properties — even sometimes what you can sell. Historically, though, these deeds have also outlined who can live in certain neighborhoods.

Take this clause, which is still included on a deed restriction signed in 1947 for a neighborhood in West Austin: “No persons of any race other than the white race shall use or occupy any building or any lot, except that this covenant shall not prevent occupancy by domestic servants of a different race domiciled with an owner or tenant.”

Restrictive Covenant
Courtesy of Rina Sadun
The restrictive covenant that came with Rina Sadun's home includes a clause that restricts anyone of "African descent" from owning or renting a home on the property.

A year later, the Supreme Court began unraveling the legal ability to enforce these laws. But you can still find these words in many private zoning documents in Austin.

“It’s just ubiquitous. It’s everywhere,” Eliot Tretter, a professor of geography at the University of Calgary, told KUT. Tretter wrote a report about restrictive covenants, including racial restrictive covenants, when he was teaching at UT Austin.

Tretter writes how deed restrictions with racist clauses are most commonly found in parts of West Austin, where segregation still persists. For example, they exist in neighborhoods in Council District 10, which spans from MoPac to Lake Travis and was 83% white in 2010.

Restrictive Covenant Map

But changing a restrictive covenant can be expensive and time-consuming. It often requires hiring a lawyer, since these documents are treated like private contracts, said Houston-based land use lawyer Reid Wilson.

It also requires that at least a minimum of the landowners in the area agree to the change. That number varies depending on what's written into the document.

“It might be 75%, it might be 90%,” Wilson told KUT. “That’s where you get into the problems with the amendment process.”

HB 1202 purports to make that simpler, allowing neighborhood representatives who have voted to strike a discriminatory clause from their local restrictive covenant to send the new document to their local county clerk’s office to make the change official.

The bill is currently in a Senate committee and needs to pass the full Senate before heading to the governor's desk, where it could be signed into law.

Corrected: May 14, 2021 at 6:18 PM CDT
A previous version of this story misspelled Rina Sadun's last name.
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