New Washington Law Allows Removal of Racist Covenants From Deeds And Public Records

Sponsored content by Stoel Rives LLP originally published by the Puget Sound Business Journal on May 2, 2022.

The deed to your property may include a racist relic from the past. Racial or otherwise discriminatory property covenants were allowed by law in Washington until 1969. These covenants included such things as prohibitions on ownership by Black or Asian persons and are present in both commercial and residential property deeds as well as in covenants, conditions and restrictions (CCRs) used by many “common interest” developments, including condominiums and co-ops that regulate the use, appearance and maintenance of property. Although deeds recorded since 1969 do not contain these covenants, older deeds still contain such racist relics. Thankfully, there are new tools to remove racially discriminatory covenants from deeds.

Since 1987, Washington law has provided a method to “remove” racist covenants from deeds, but this method only strikes the covenant from the chain of title going forward and it allows the original racist relic to remain a public record. In response to concerns about this, in 2021 the Washington legislature created a new way to remove the offending language from original deeds without eliminating the historical fact of such racism.

We first focused on this new law when one of our clients—a large homebuilder—asked us to help eliminate racist covenants from all its properties so it could sell its homes free of such language. We have come to believe that many commercial or residential property owners, including condominium owners, as well as tenants, will want to know how to use this new legal tool to join the fight against racism in property ownership.

Since 2019, property owners in Washington have been able to record a “restrictive covenant modification document.” The modification document refers to the recording number of the original instrument and states: “The referenced original instrument contains discriminatory provisions that are void and unenforceable under RCW 49.60.224 and federal law. This document strikes from the referenced original instrument all provisions that are void and unenforceable under law.” Recording a modification document has the legal effect of striking discriminatory language from a property’s chain of title. Restrictive covenant modifications do not, however, physically erase the racist provisions from the original deed.

Starting in 2021, property owners, occupants, tenants and boards of homeowners associations have a more powerful tool for mending the effects of historical racism under the amended RCW 49.60.227(1). Under the revised statute, a property owner may now file a lawsuit in superior court to remove racial covenants from the chain of title. The lawsuit is against the property itself. If the court finds the covenants void, it will issue an order striking the racist language from the public records. Here’s how it works.

1. The court order includes a certified copy of the deed or CCRs on which the court has physically stricken the void provisions.
2. The person bringing the action can record a certified copy of the order with the county auditor, who will place an image of the corrected document in the public records with a notation that the original document was corrected.
3. The county auditor then updates the indexes of each original document referenced in the court order, adding a note that the original document is no longer the primary official public record. The original document is then physically removed from the chain of title.
4. The original document is then maintained separately (it is moved from the chain of title by the county, who may transfer it to the secretary of state archives division to be preserved for historical or archival purposes).

A Washington Supreme Court ruling earlier this year confirmed the legislature’s intent in amending RCW 49.60.227 in 2021. The court noted: “Striking [racial covenants from public record] does not prevent preservation of the original record, outside of the chain of title, for historical or archival purposes.” While the process of removing racial covenants from a property’s public record may continue to evolve, it is now clear that property owners have the right to remove long-antiquated covenants from their property.

Since the Washington Supreme Court has validated the new tool provided by our legislature, property owners can take action to affirmatively erase these racist relics from their chain of title, removing hateful and hurtful language for the benefit of future generations.