BACKGROUND ON RACIAL COVENANTS:
- Primarily between the 1920s and through the 1960s, property owners found a way to enforce segregation and block the flow of black residents to their neighborhoods using racially restrictive deeds and covenants. These documents with racially restrictive words were attached to parcels of land or subdivisions, and they were intended to prevent the sale, transfer, or rental of property to anyone black, also often including other racial, ethnic, or religious groups.
- In 1948, the U.S. Supreme Court ruled that courts could not enforce these racially restrictive covenants, and they became illegal when the Fair Housing Act of 1968 banned race-based discrimination in housing.
- While older historical deeds may still include such language, the language is not enforceable. And as property transfers occur, these types of restrictive covenants are no longer included in deeds.
- However, more than 50 years later we are still bearing witness to this appalling race-based language that is baked into housing documents that sit in official government archives here in Cook County and in jurisdictions across the country.
- This language remains as offensive today as when it was originally drafted, and it is a painful reminder of the deep and divisive history of discrimination and racial divide in this country. This is but one example of the many discriminatory housing practices of which both the government and others were complicit.
- ILLINOIS HAS PASSED A NEW LAW TO ADDRESS THIS ISSUE. WHAT ARE THE DETAILS?
The Illinois Legislature acted last year to enact a law that empowers property owners to conduct their own research to discover unlawful restrictive covenant language in their property’s chain of title and to have such language redacted from official records. The law took effect January 1, 2022.
Specifically, the law (55 ILCS 5/3-5048) empowers a property owner to search for a document that contains the unlawful restrictive covenant and submit a petition with the offending document to the Clerk’s Office requesting the redaction of unlawful restrictive covenant language.
The Clerk’s Office then submits the restrictive covenant modification to the State's Attorney and once submitted, the State's Attorney makes a legal determination if the original document contains an unlawful restrictive covenant.
If the State's Attorney determines an unlawful restrictive covenant exists, the Clerk’s Office is notified and will then strike out the language in the deed and officially record the revised document into the property’s chain of title.
- HOW IS IT DETERMINED THAT A PROPERTY HAS UNLAWFUL RESTRICTIVE COVENANT LANGUAGE IN ITS CHAIN OF TITLE?
The obligation is on the property owner to research and identify whether there is unlawful restrictive covenant language in their chain of title. This can be a challenging process as it requires research of Cook County’s vast inventory of millions of property records and deeds, often dating back to the Great Chicago Fire. It is recommended that customers unfamiliar with the search process consider consulting with an industry professional.
- HOW CAN A PERSON GO ABOUT REMOVING RACIAL COVENANT LANGUAGE FROM THEIR DEED / PROPERTY RECORD?
The process begins by identifying the language in a property’s chain of title. To do this, a search of records must be conducted at the Clerk’s Property Record Archives, located at 118 N. Clark Street in Chicago on the lower concourse level. Utilizing the property’s PIN (Property Index Number), an individual can begin by reviewing documents in the tract books to identify documents by number that have been recorded against the particular property in the tract. Once document numbers have been identified, they can be provided to the Clerk’s Office archivist for retrieval. Due to the older nature of the documents, they are often warehoused at a different site and must be ordered. The individual must read over the retrieved documents to determine if an unlawful restrictive covenant exists.
- IF RACIAL COVENANT LANGUAGE IS FOUND, WHAT IS THE PROCESS OF REMOVING IT?
If an unlawful restrictive covenant language is discovered in a chain of title by the owner, the Clerk’s Office requires completion of a Petition for an Unlawful Restrictive Covenant Modification Form, which must be signed and notarized. In addition, a document must be attached with a strike through of the unlawful restrictive covenant language.
The completed form can be mailed or returned in person to the Cook County Clerk’s Fraud Unit – Recording Operations, 118 N. Clark Street, Room 120, Chicago, Illinois 60602.
Once received, the Clerk’s Office will submit the modification form to the State's Attorney for legal determination of the unlawful restrictive covenant language. If the State's Attorney determines an unlawful restrictive covenant exists, the Clerk’s Office will then strike out the language in the original document and officially record the revised document into the property’s chain of title. In essence, the original record is modified with the racist language removed and replaced as a new historic document.
- WHAT IS THE CLERK’S OFFICE DOING TO GET THE WORD OUT TO PEOPLE THAT HIS OPPORTUNITY IS AVAILABLE TO THEM?
The Clerk’s Office has been working to develop policies and procedures to handle restrictive covenant requests and will begin rolling out procedural information to the public in coming weeks and months.
- ARE THERE COSTS / FEES INVOLVED?
Costs cannot exceed more than $10 under the new law.