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Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Powell on Real Property, Michael Allan Wolf & Richard R. Powell, eds., 2013

Arizona Legal Studies Discussion Paper No. 13-21

32 Pages Posted: 3 Apr 2013  

Carol M. Rose

University of Arizona - James E. Rogers College of Law

Date Written: March 13, 2013

Abstract

This article was given as the 6th Annual Wolf Family Lecture on the American Law of Real Property, University of Florida Levin College of Law (2013). It draws on property law discussions in Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article outlines the ways in which constitutional law and property law engaged in a dialog about white-only racial covenants from their early twentieth-century origins to the middle of the twentieth century and beyond. After a shaky beginning, both constitutional law and property law became relatively permissive about racial covenants by the 1920s. But proponents of racial covenants had to work around property law doctrines — including seemingly arcane doctrines like the Rule Against Perpetuities, disfavor to restraints on alienation, "horizontal privity," and "touch and concern." Moreover, property law weaknesses gave leverage to civil rights opponents of covenants, long before Shelley v. Kraemer (1948), the major constitutional case that made these covenants unenforceable in courts. Even after Shelley's constitutional decision, property law continued to be a contested area for racial covenants, with echoes even today.

Keywords: racial covenants, property law, constitutional law, Shelley v. Kraemer, restraints on alienation, rule against perpetuities, horizontal privity, changed conditions, touch an concern, recorder of deeds

JEL Classification: K11, K14

Suggested Citation

Rose, Carol M., Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants (March 13, 2013). Powell on Real Property, Michael Allan Wolf & Richard R. Powell, eds., 2013; Arizona Legal Studies Discussion Paper No. 13-21. Available at SSRN: https://ssrn.com/abstract=2243028

Carol Marguerite Rose (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-621-5544 (Phone)
520-621-9140 (Fax)

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