Also known as: discriminatory covenants · restrictive covenant · racially restrictive covenant
Written by attorneys · grounded in primary & secondary sources — see below
A restrictive covenant that limits the sale, occupancy, or use of land on the basis of race, color, religion, or other protected characteristics. Such covenants are negative covenants that run with the land when properly created but are unenforceable in court because judicial enforcement constitutes state action violating the Equal Protection Clause.
Deanna Davenport records a deed restriction on her parcel stating that no future owner may sell or lease to persons of a designated racial group. When a neighbor attempts to enforce the restriction against a subsequent purchaser, the court treats the clause as a restrictive covenant rather than a negative easement because it limits permissible uses of land without granting any affirmative right of entry.
Diane Dawson sells a lot subject to a recorded clause barring occupancy by members of a particular ethnic group. Years later the buyer proposes to convey the lot to a prohibited purchaser. The seller's successor sues to block the transfer, arguing the clause is a negative covenant that limits land use and therefore runs with the land under the Restatement definition.
Select any source to read its text and confirm it supports the definition.
Darius Dixon and several neighbors sign a covenant prohibiting sale of their homes to Black buyers. When Dixon sells to a Black family, the neighbors sue him at law for damages rather than seeking an injunction. The court refuses to award damages, holding that state enforcement of the discriminatory covenant would violate the Fourteenth Amendment.
Deborah Dunn purchases a home in a neighborhood subject to a recorded covenant excluding persons of the Negro or Mongolian race. When she takes title, neighboring owners sue to enjoin her occupancy. The Supreme Court holds that a state court may not enforce the covenant in equity because doing so would constitute state action denying equal protection.
Dolores Diaz buys a condominium unit subject to a recorded declaration that effectively bars occupancy by families with children under a discriminatory age restriction. When the association attempts to enforce the clause, the court refuses relief, treating the provision as an unenforceable discriminatory covenant rather than a valid use restriction.
Dominic Drake leases an apartment under a building rule that excludes unmarried couples. After the landlord attempts to evict him for violating the rule, the court declines to enforce the restriction, recognizing it as a discriminatory covenant that cannot be judicially enforced on grounds of familial status.
Judicial enforcement of a discriminatory covenant constitutes state action that denies equal protection under the Fourteenth Amendment. Courts therefore refuse both equitable injunctions and damage awards for breach.
Yes. The Restatement treats a negative easement as a restrictive covenant because both limit permissible uses of land. A discriminatory restriction is therefore analyzed as a restrictive covenant whose burden may run with the land, yet remains unenforceable for constitutional reasons.
Yes. The covenant appears in the chain of title and supplies constructive notice of its terms. Purchasers therefore cannot claim surprise, but courts will not grant any remedy to enforce the discriminatory provision itself.
…rights of potential pupils and their parents; and to Barrows v. Jackson , 346 U. S. 249, where a white defendant, party to a racially restrictive covenant, who was being sued for damages by the covenantors because she had conveyed her property to Negroes, was allowed to raise the issue that enforcement of the covenant violated the rights of…