Tara Barauskas, executive director of Community Corporation of Santa Monica (CCSM), was set to begin a new affordable housing project on the property she just bought in Westchester, CA, last August. But the original title owner would not allow her to move forward because of the property’s racially restrictive covenant and density restrictions.
“I’ve seen this at least four or five times in various parts of California,” Barauskas said. “So, what finally made me say enough is enough, is when I ran across another one in Westchester near LAX. These kinds of covenants restrict the race of who can live there, and in particular, this one also said that you couldn’t build more than two units on the property, even though the zoning allows you to.”
“This restrictive covenant is from the 1940s and is a private covenant,” Barauskas continued. “The city has no jurisdiction over it. And the title company said it’s enforceable. So, I got mad. This is prohibiting an affordable housing development on the property, and it’s a great location for one.”
Like Barauskas’s, density restrictions and racially restrictive verbiage are deep in many of California’s private covenants.
Density restrictions limit the number of units a property can have, creating barriers to affordable housing developments. For example, the limit for Barauskas’s property is four units. In many cases, the restrictions were incorporated to keep large quantities of people of color out of predominantly white and wealthy neighborhoods.
Unlike density restrictions, racially restrictive covenants are more up-front in the legal jargon that bars people of color from purchasing, leasing, or living on specific properties.
“Racially restrictive covenants still appear on many deeds, but they cannot be legally enforced,” Dara Roithmayr, a law professor at the University of Southern California, said. “So, in that sense, they don’t exist, though the language remains in the property documents.”
The racially restrictive covenant for Barauskas’s property reads, “No part of any lot shall ever at any time be used or occupied or be permitted to be used by any person not of the white or Caucasian race, excepting that persons not of the Caucasian race may be kept theron by such Caucasian occupant strictly in the capacity of servants or such occupant.”
CCSM is a non-profit organization that restores, builds, and manages affordable housing developments throughout Los Angeles County.
Barauskas purchased the property, on behalf of CCSM, in Westchester for $9 million to support low-income families. However, when the title company forbade the affordable housing project, she enlisted the services of Public Counsel, a pro-bono law firm.
Public Counsel then advised Barauskas to contact a legislature to propose a new statewide measure to outlaw the restrictions.
For Barauskas to approach a legislature about the matter, she had to present her problem in the larger context of the housing crisis in California.
So, Public Counsel helped her search for a history of the covenants binding properties and hindering affordable housing developments throughout LA County.
“One of the challenges we faced is the relative lack of existing research on the impact of private density restrictions on real estate,” Brandon Payette, Staff Attorney at Public Counsel, said. “We did, however, find quite a bit of existing research on racially restrictive covenants, including a U.S. Commission on Civil Rights report that suggested that by the 1940s, 80% of Los Angeles was burdened by some form of racial restriction.”
“We are still conducting additional research to better determine exactly how widespread these private density restrictions are, but so far, it seems that the private density restrictions are as common as the racially restrictive covenants in residential neighborhoods in LA.”
Last August, Barauskas reached out to the office of State Assemblymember Richard Bloom, who represents California’s 50th Assembly District in Santa Monica.
The Assemblyman agreed that the density restrictions in the private covenants were worthy of a statewide policy fix. As a result, Barauskas’s proposal became what is now known as AB 721.
“It’s shocking to see what has been done in the past to bar communities of color from living in certain properties, and how those things still exist today,” Lenh Voong, legislative assistant to Assemblymember Bloom, said. “It was also very shocking to hear that this is holding up affordable housing.”
“Affordable housing issues are his priority. He has worked on many bills to help protect renters, build more affordable housing, and preserve as much housing as possible. So, for him, this bill was a no-brainer. It was a small step towards helping us address the housing crisis.”
On February 16, AB721 was introduced in the Assembly by Assemblymember Bloom. The measure will clarify that the density restrictions in private covenants are unenforceable. This means affordable housing developers like CCSM can build as many 100% affordable units as the local zoning code allows.
As of July 14, AB721 was passed by the Senate Judiciary Committee and awaiting approval from the Senate Appropriations Committee.
“We’re just really happy we got as far as we could, so we’re really close to hopefully get over that desk,” Voong said. “The only thing difficult to arrange was describing what the bill does. Everyone was like, ‘I thought we made racial restrictions unenforceable.’ And we’ll say yeah it is, but here are other ways that these covenants make it hard to build housing.”
Shelley versus Kraemer was a landmark court case argued by Thurgood Marshall, civil rights activist and former Supreme Court Justice.
On May 3, 1948, the United States Supreme Court declared that racially restrictive covenants violated the Equal Protection Clause of the Fourteenth Amendment.
Lorren Miller, a civil rights attorney and judge, assisted Marshall as chief counsel. Years prior, Miller had successfully argued more than one hundred California cases to invalidate housing covenants in the late ’30s and early ’40s. He was essentially the “go-to man for black homeowners.”
In 1963, a California law called the Rumford Fair Housing Act was passed to allow people of color to purchase housing without being subjected to discrimination.
However, in 1964, white Californians overwhelmingly voted to approve Proposition 14, nullifying the Rumford Fair Housing Act. But in 1966, the U.S. Supreme Court overturned Proposition 14 and ruled it unconstitutional under the 14th Amendment and the Civil Rights Act of 1866.
In 2000, California began allowing homeowners to modify their property documents that contain racist covenants. But the change does not remove the exact phrasing. Instead, it sits on top of the original racist language.
Former State Assemblymember Hector De La Torre proposed AB 2204 in 2008 to remove deeds’ racist language at the time of the next sale. But unfortunately, it was vetoed by then-Governor Arnold Schwarzenegger.
The Waiting Game
Barauskas’s affordable housing project is still at a standstill as AB 721 officially becomes a California law. In the meantime, she attends weekly phone meetings with Assemblymember Bloom and his team for a status update.
“The principle of it is that I can’t walk away from this,” Barauskas said. “I know I’m on the right side of ethics here, and I’m willing to fight this one to the dust. I am just so happy that the Assemblymember saw how important this is.”
“We think that it is possible that this bill could get passed in the session. So, we’re optimistic but still waiting to see what happens.”