Discriminatory Covenants and Deed Restrictions in Wisconsin
Offensive, discriminatory covenants based on race and other protected classes appear in deeds and subdivision restrictions and covenants throughout Wisconsin. While illegal, this language haunts the title records and title commitment reports that buyers receive when looking to purchase these properties.
While the 1968 Fair Housing Act and Wisconsin’s Open Housing Law prohibit discriminatory covenants, the language is not erased from property deeds and title records. Encountering such language can shock potential buyers, further complicating the already emotionally charged homebuying process.
Sample covenant
Legislative solution
AB 444/SB 439 creates a statutory form to be recorded with the register of deeds. When title is pulled for a title commitment, the form would be reflected rather than discriminatory language.
- Reiterates Wisconsin law prohibits discriminatory restrictions.
- Allows a property owner to record a statutory form with the register of deeds to discharge and release the restriction from the title.
- Requires the statutory form to be provided by the state.
- Compels the register of deeds to accept the statutory form if:
- The form is notarized.
- Contains a legal description.
- Contains the date of the recording of the instrument containing the restriction along with the volume and page number.
- And complies with other recording requirements.
- This legislation is intended to empower the property owner to take action when a discriminatory restriction is recorded on their land record.
History of Discriminatory Covenants
1917:
The U.S. Supreme Court ruled in Buchanan v. Warley that ordinances establishing racial restrictions violated the 14th Amendment. However, discriminatory restrictive covenants continued to superseded ordinances and became a mechanism for establishing segregation.
1926
The U.S. Supreme Court affirmed the legality of the practice of developers writing racially restrictive covenants into the title of millions of new homes. The ruling in Corrigan v. Buckley stated that private deeds and developer plat maps are not similarly affected by the 14th Amendment like states because individuals enter into covenant agreements voluntarily, whereas ordinances are imposed by state and municipal government.
1942
The Wisconsin Supreme Court held in Doherty v. Rice that a Black man was prohibited from building a cabin with a value of less than $600 on a Wisconsin lake, although whites could do so under the racially restrictive covenants governing this lakefront property.
1948
The U.S. Supreme Court unanimously ruled racially restrictive covenants were unenforceable. The court held judicial enforcement of racially restrictive covenants was unconstitutional in Shelley v. Kraemer.