Land records serve as a historical record, documenting the creation, transfer and agreements related to a property. However, at times, these records also reflect a history of discrimination. For instance, land records for properties across the nation, including in the state of Wisconsin, contain language that, if enforced today, could deny ownership or rental opportunities to individuals based solely on their race, religion, origin or other protected class.

And even though enforcement of such language is illegal, the discovery is unsettling for several reasons. Derogatory and offensive language reveals a grim chapter in a community’s history — a legacy of prejudice and discrimination that can have lasting effects for decades to come.

What are discriminatory restrictions? 

Discriminatory covenants are subdivision covenants and deed restrictions that prohibit purchase or occupancy based on race and other protected classes. 

Examples have been found statewide spanning, from 1919 to 1958, with language restricting property ownership or rental based on race, religion, familial status and other protected classes. The following are just some instances discovered in Wisconsin: 

“At no time shall the land included in Washington Highlands or any part thereof, or any building thereon be purchased, owned, leased or occupied by any person other than of white race. This prohibition is not intended to include domestic servants while employed by the owner of occupied by and [sic] land included in the tract.” 
(Subdivision covenant, Milwaukee County, 1919) 

“Only members of the Caucasian race shall use or occupy any dwelling on said lot, except that this covenant shall not prevent occupancy by domestic servants of a different race or nationality employed by owner or tenant.” 
(Subdivision covenant, Dane County, 1937)

“The premises shall not be sold or conveyed to any Jew, Italian, Negro or member of the yellow race.” 
(Deed restriction, Dane County, 1938) 

“No part of said platted premises shall ever be conveyed to, used, owned or occupied by any person other than the Caucasian race, either as owner or tenant.” 
(Subdivision covenant, Dane County 1947 binding until 1972, renewed every 10 years)  

History 

Since the 1900s, discriminatory restrictions have been used to keep protected classes out of residential areas. Property owners, local government, real estate developers, real estate brokers and boards, financial institutions and title companies used restrictive covenants and deed restrictions as a method to keep protected classes — primarily Black families — out of residential communities. Initially local ordinances established restrictions in different neighborhoods and communities, followed by restrictive covenants in subdivisions and deed restrictions for individuals.

• 1917: In Buchanan v. Warley, the U.S. Supreme Court ruled that ordinances establishing racial restrictions violated the Fourteenth Amendment, resulting in restrictive covenants as the preferred mechanism for establishing discriminatory segregation.
• 1926: In Corrigan v. Buckley, the court held that while states are barred from creating race-based exclusionary laws and ordinances, private deeds and developer plat maps are not affected by the Fourteenth Amendment.
• 1948: In Shelley v. Kraemer, the court unanimously ruled that racially restrictive covenants were unenforceable. 
• 1968: The Fair Housing Act of 1968 was passed, making these covenants illegal and unenforceable. The Fair Housing Act prohibits discrimination in the sale, rental and financing of dwellings and other housing-related transactions based on race, color, national origin, religion, sex, familial status and disability. 

Lasting effects of discriminatory restrictions 

Projects in Dane County and Milwaukee have specifically concentrated on researching and documenting these covenants and their impacts on communities.

In 2022, Dane County, in a joint venture with the Dane County Planning and Development and the Boys and Girls Club of Dane County, created the Mapping Prejudice Project to start tracking discriminatory covenants within the county for any recorded document indexed back to 1937. Learn more at www.danecountyplanning.com/Mapping-Prejudice-Project. 

Drs. Anne Bonds and Derek Handley, University of Wisconsin — Milwaukee professors and UWM urban studies program faculty members, have been working on Mapping Racism and Resistance. The project specifically focuses on the history and impact of raced-based discriminatory language in real estate covenants.

The work highlights the lasting impacts of these racist documents in Milwaukee area communities, including 20 years of cultural behavior normalizing the restrictions, generational and racial wealth gaps, current home property values, access to well-established education systems, and inconsistencies in appraisal practices. Learn more about Mapping Racism and Resistance at sites.uwm.edu/mappingracismresistance.

Wisconsin legislation aims to assist  

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.

Consequently, one of the WRA’s 2023-24 legislative priorities was to establish a voluntary process for property owners to address discriminatory restrictions or covenants recorded on their land.

AB 444/SB 439 addresses discriminatory restrictions and covenants 

The legislation 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. 

Introduced in September 2023 by Sen. Ballweg (R-Markesan), Sen. Johnson (D-Milwaukee), Rep. Novak (R-Dodgeville) and Rep. Haywood (D-Milwaukee), and waiting to be signed into law, the three major takeaways of AB 444/SB 439 include:

1. Only a property owner may record a statutory form with the register of deeds to discharge and release the restriction from the title.
2. The legislation does not delete the discriminatory restriction from the land title. To retain valuable historical context about the property’s past, the bill does not delete or erase the language from the land record. 
3. The process is voluntary.

While the ability to file the statutory form is only available to the property owner, the form can be filed by sellers before they list, buyers when they purchase the property, or by a property owner at any time. A $30 document recording fee will be charged.

Learn more at action.wra.org/2023/07/10/discriminatory-covenants-and-deed-restrictions-in-wisconsin.