INTRODUCTION by Trey Wilson – San Antonio Real Estate Lawyer

Let’s face it, racial and other types of discrimination get more than their fair share of negative attention in today’s media and social media-driven culture. And for good reason.

Although not eradicated, the most blatant and explicit forms of racial discrimination are largely a relic of past times. Today’s racism has been ubiquitously labeled as “systemic.”  While I am far from an authority on the topic, I  believe that the 2020’s brand of racism is more accurately described as “latent.” It surely exists, but lurks in the concealed corners of human minds and insidious behaviors.

Not too long ago, however, racism in real estate was flagrant and undisguised. I have personally come across numerous deeds containing restrictions prohibiting certain races from purchasing or even occupying properties right here in Bexar County. Imagine my surprise the first time I saw a covenant prohibiting “Mexicans” from inhabiting homes in the Harlandale area of San Antonio (which is a predominantly  Mexican-Amercian part of town).

Of course, these restrictions are invalid now.  They are void as against public policy, and unenforceable. Yet, at the time they were drafted racist covenants were enforceable in Court and attached to property the same as thUe covenants with which we are all familiar today – limitations on use, building size, construction materials, etc., etc.

Like most victories in the war for civil rights, invaliding racially discriminative deed restrictions was marked by a deliberative process undertaken by bold leaders with focused strategies and an intrepid sense of Justice.  The 1948 U.S. Supreme Court case of Shelly v. Kramer is an example of a landmark case celebrated for striking the enforceability of racist covenants that seem unfathomable in today’s age. Perhaps most overwhelming is the idea that the highest court in our land had to intervene in order to stop state courts from enforcing discrimination in real estate.

I asked our law clerk David Glasco II to write the following post about Shelly v. Kramer and why it remains relevant today.

Shelly v. Kramer by David Glasco II, J.D.

In 1945, St. Louis, Missouri a black couple by the name of the Shellys wished to purchase a home from a family known as The Kramers. Unknown to the Shelly family, a restrictive covenant was in place in the neighborhood which did not allow for anyone of “the Negro or Mongolian race” to occupy the homes. The HOA (Home Owners Association) then brought suit to try to enforce the covenant against The Shellys.

The case had made its way all the way to The United States Supreme Court and at issue involved America’s rule book better known as The United States Constitution. The question at hand is if the Constitution prohibits the enforcement of racial restrictive covenants that are entered into by private parties. The answer is yes.

As American citizens when one is deprived of life, liberty or property then their Due Process and/or Equal Protection rights are violated. Ultimately, The United States Supreme Court decided that a restrictive covenant based on race is a violation of due process involving Equal Protection under the law. Usually when a private covenant is in place it is to be allowed due to non-involvement of the state. But Justice Vinson, who wrote the opinion for the US Supreme Court, stated that the mere inclusion of the justice system makes this no longer a private act due to the judicial system now being involved. Shelly v. Kramer was not the first case which dealt with issues of discrimination on property, but it is one of the more famous ones which makes us look into the 14th Amendment’s purpose.

Evolution into The Fair Housing Act

Even though the aforementioned case was decided in 1948 it was not until 1968 when President Lyndon Johnson signed the Civil Rights Act of 1968 which prohibited discrimination concerning the sale, rental and financing of homes based on race, religion, national origin or sex. Even today we can see that discrimination of housing is still at issue. In October of 2020, The Justice Department had filed a lawsuit against a Staten Island Realty Company alleging discrimination against blacks in violation of the Fair Housing Act. This is an ongoing issue which was first addressed in 1868 when the clause was added to our Constitution and still unfortunately lingers until this day, hundreds of years later.

Why is any of this important?

What are the significances of Shelley V. Kraemer or The Fair Housing Act? The answer is so that one may know the proper enforceable items within restrictive covenants. A restrictive covenant puts limitations on the use of land. In order for a restrictive covenant to be valid it must: 1) be in writing, 2) touch and concern the land, 3) have an intent to run with the land, 4) and one must have notice of the covenant. As you can see due to cases such as Shelley v. Kraemer and the addition of constitutional provisions such as The Fair Housing Act even if covenants are set in place on the land there are exceptions as to those which may not be enforced. Not allowing one to live in a neighborhood due to their race is one example of a covenant which infringes upon a citizen’s constitutional rights and is the reason why a case like Shelly v. Kraemer is significant and is still relevant today.