A covenant is a legally enforceable contract imposed in a deed upon the buyer of property. Racially restrictive covenants refer to legal agreements that prohibit the purchase, lease, or occupation of a piece of property by a particular group of people and that prohibit the homeowner from selling or renting to anybody of a specific race or ethnic background.

Example text found in documents include the following:

“It is hereby covenanted and agreed by and between the parties hereto and it is a part of the consideration of tis deed, and this deed is executed upon the condition subsequent that the above described real property shall no be occupied by any person not of the Caucasian race, and shall further not be occupied by any persons of the Mexican race of any person of the American Indian Mongolian race.”

Restrictive covenants were an effective way to segregate neighborhoods and stabilize the property values of white families, and beginning in 1934, the Federal Housing Authority recommended the inclusion of restrictive covenants in the deeds of homes it insured. These racially restrictive covenants made it illegal for African Americans to purchase, lease or rent homes in white communities. In a landmark 1948 (Shelley v. Kraemer, 334 U.S. 1,1948)  ruling, the Supreme Court deemed all racial restrictive covenants unenforceable. While Titles VIII and IX of the 1968 Civil Rights Act, also known as the Fair Housing Act of 1968, prohibited discrimination in the sale, rental, and financing in housing-related transactions based on race, color, national origin, religion, sex, disability, marital status, and familial status, many restrictive covenants continue to remain in property deeds throughout San Benito County.

Under current state law,  AB 1466 effective January 1, 2022, homeowners can request to modify property documents that contain unlawful discriminatory & restrictive covenant provisions. Government Code Section 12956.2 allows anyone who believes the property is the subject of an unlawfully restrictive covenant to record a Restrictive Covenant Modification document to have the illegal language redacted. Unlawful restrictions include those restrictions based on age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, veteran or military status, national origin, source of income as defined in Government Code Section 12955 subdivision (p), ancestry, or genetic information.

How to record a Restrictive Covenant Modification:

• Complete a Restrictive Covenant Modification Form.

• Attach a copy of the original document containing the unlawful restrictive language with the unlawful language Redacted.

• Submit the completed document to the County Recorder. There is no fee to record this document in San Benito County.

Upon receipt, the Recorder’s office will submit the document to County Counsel who will determine whether the original document contains any unlawful restrictions, as defined in the Government Code Section 12956.2 (b). Only those determined to be in violation of the law will be recorded and those that are not, will be returned to the submitter unrecorded.

Please note that the Recorder’s is not liable for modification not authorized by law. This is the sole responsibility of the holder of ownership interest who caused the modified recordation per Government Code Section 12956.2 subdivision (f).

Under state law, pursuant to AB 721 effective January 1, 2022, the owner of an affordable housing development can request to modify property documents that restricts the number or size of residences that may be built on a property or that restricts the number of persons that may reside on a property to the extent necessary to allow the affordable housing development to proceed as defined in Government Code 12956.2 and Civil Code 714.6.

How to record an Affordable Housing Restrictive Covenant Modification:

• Complete a Restrictive Covenant Modification-Affordable Housing Form.

• Attach a copy of the original document containing the unlawful restrictive language with the unlawful language Redacted.

• Submit the completed document to the County Recorder. There is a fee to record this document in San Benito County.

Upon receipt, the Recorder’s office will submit the document to County Counsel who will determine whether the original document contains any unlawful restrictions, as defined in Government Code Section 12956.2(b). Only those determined to be in violation of the law will be recorded and those that are not, will be returned to the submitter unrecorded.

Please note that the County Recorder is not liable for modification not authorized by law. This is the sole responsibility of the holder of ownership interest who caused the modified recordation per Government Code Section 12956.2 subdivision (f).