Deed Provisions

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Deed Provisions
Article Excerpt

Although not enforceable, some house deeds still include provisional language from Texas' segregationist past. Some homeowners choose to remove it.

Owning a home in Texas means owning the history of the home and the land where it sits. This is not a metaphor. When you buy a home, someone must search the title history to see if anyone else might have any claims to the property and if the land has any legal restrictions. When a person transfers title to real property to someone else, they can set limits on the use of the land known as “restrictive covenants” or “deed restrictions.”

As long as these restrictions don’t violate the law, they are binding on anyone who buys that land from then on. Unfortunately, many properties in Texas have deed restrictions that were originally put there during the Jim Crow era. While they are no longer legal or enforceable, they are still part of the property’s title history, which is part of the public record. A new state law makes it easier for homeowners to remove these restrictions from their recent property records.

» READ MORE: What does Equal Housing Mean?

What are Deed Restrictions and Provisions?

A deed for a property located in an area known for scenic views might include a clause stating that the owner must keep trees and other plants cut below a maximum height so that they do not obscure other homeowners’ views. The neighbors would have the right to enforce the deed restrictions in court.

Deed restrictions make HOAs possible. When you buy a home that is part of a homeowners’ association (HOA), a deed restriction makes HOA membership mandatory. The deed will typically specify that you must pay dues to the HOA and abide by its rules, and it will refer to another document that contains all of the rules.

A restrictive covenant or deed restriction is a provision in a deed that limits a buyer’s use of the property. Although these restrictions featured segregationist themes in the 20th century, not every modern-day provision is discriminatory.

Window opening to the ocean.

Photo by Ben Mack on Pexels

Enforcing Deed Restrictions in the Modern Era

Not all deed restrictions are valid or enforceable. Sometimes this is because a deed restriction is not legally valid. Deed restrictions that attempt to discriminate on the basis of race and other factors are completely void under the law. Texas sets other limits on deed restrictions, such as by requiring a person who is going to court to enforce a deed restriction to prove that they have an actual interest in its enforcement.

To use the example of keeping trees below a certain height, a neighbor whose view has been obscured by overgrown trees may have the right to enforce a deed restriction. A person who has suffered no harm because of the trees, on the other hand, may not bring a claim in court.

Cost is another limit on the enforcement of deed restrictions. Without an HOA to enforce rules, other homeowners have to go to court at their own expense to enforce a deed restriction. Most neighbors probably wouldn’t do this unless they stood to lose more by not going to court than they will spend on legal fees. If, for example, a neighbor’s trees are blocking their view and threatening to damage their property value, it might be worth the time and expense of going to court.

What are “Discriminatory Provisions” in Deed Restrictions?

Some subdivisions and neighborhoods in Texas and other states used deed restrictions in the early 20th century to enforce segregation. Deeds would often include provisions limiting homeownership in an area to “members of the Caucasian race,” or something similar.

The U.S. Supreme Court ruled that these kinds of provisions are unenforceable all the way back in 1948. It didn’t say that the provisions are entirely invalid. It just said that the Fourteenth Amendment prevented courts from enforcing deed restrictions that discriminate on the basis of race. The Equal Housing laws that Congress passed in the 1960s made it harder for people to enforce discriminatory deed restrictions even without the courts.

Texas officially declared them to be invalid in 1983 when it added § Section 5.026 to the Texas Property Code. This section states that any provision in a deed or other real estate document that restricts ownership rights “because of race, color, religion, or national origin…is void.”

Black and white image of a city street.

Removing Discriminatory Provisions from Deeds

Even though discriminatory deed restrictions haven’t been enforceable in Texas for decades, they remain a part of the written deed history for many homeowners.

Removing a deed restriction could be, in times past, a difficult and expensive process. But a law passed by the Texas Legislature in 2021 provides an easier and cheaper way to remove discriminatory provisions. The new law originated from an effort by a Houston HOA to remove the discriminatory language found in deed restrictions originally created in the 1940s.

Section 5.0261 of the Texas Property Code, which was added by the new law, allows homeowners to file a petition in court seeking the removal of discriminatory provisions from their deeds. Court clerks may not charge a filing fee for this. As long as the homeowner follows the basic format shown in the statute, a court should approve their request and order the removal of the discriminatory language. The old documents from the early 20th century will still be part of the public record, but they will no longer appear every time someone searches a property’s title history.

Lady Justice balancing her scales.

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