Removing racist language from Oregon property deeds not easy
When Lake Oswego High School teacher Gerrit Koepping read about how simple it was to remove the racist language that's often found buried within the covenants, conditions and restrictions documents of older properties, he decided to look into the process this summer.
What he quickly found was that while a newsletter from the city of Lake Oswego made the process seem easy, it was not.
"There's no form; there's no set process," he said.
Koepping isn't the only one to discover racist language or restrictive covenants in property documentation. Planning and Building Services Director Scot Siegel said in a recent interview with Pamplin Media Group that such restrictions on properties used to be commonplace. Nowadays, the language is considered unconstitutional and cannot be enforced by law.
Siegel said the restrictions that some property owners might find in their property titles or deeds were placed there by the developer, or at the insistence of their bank or lender at the time. Siegel said he was aware of some properties in the city that were developed primarily before the 1950s and might still have discriminatory language in the deeds.
Koepping, who teaches Lake Oswego High School civics and advanced placement government classes, knew where to look for the language when he purchased his home in Lake Oswego's Lakewood area in 2018. Koepping said there was a Lakewood covenant written in 1925 that contained discriminatory language. "I think most people probably find the covenant and don't even realize it's there, but it's very much there," he said.
The document has language on the third page that reads: "... nor shall the same or any part thereof be in any manner used or occupied by Chinese, Japanese or Negroes, except that persons of said races may be employed as servants by residents ..."
Clackamas County Clerk Sherry Hall said she had received a few calls from Lake Oswego residents regarding the language found in their property deeds. Hall said the language was not prevalent in the deeds, but rather the CC&Rs. Hall said the clerk's office does not deal with these requests and that people should contact a title company or attorney.
Petitioning circuit court
The city of Lake Oswego's website directly refers people to Clackamas County Circuit Court to follow through with the process. The website posting also refers to the Supreme Court decision that ruled against racially restrictive covenants in 1948, deeming them unconstitutional. They were officially outlawed by the federal Fair Housing Act of 1968.
"However, because so many of them remain in deeds and private covenants and restrictions, or 'CC&Rs,' some states, including Oregon, have adopted laws to help homeowners remove them from their deeds. The Oregon laws authorizing a streamlined process for removing racial covenants from deeds are contained in ORS 93.270 (Certain restrictions in conveyancing instruments prohibited; restriction on right of action) and ORS 93.274 (Procedure for removal of discriminatory restrictions)," according to the website. "The city does not have authority to remove or request the court remove language from property records; only the property owner can ask the court to do that."
Siegel said if the process isn't easy, especially since the recent statute was supposed to help streamline the process, then "the circuit court has some work to do."
Koepping started the process by contacting circuit court. An employee there referred him to statute ORS. 93.274, which informed him that in order to remove discriminatory restrictions he needed to write a petition to the court. For more information on the statute, click here.
Koepping was not sure how to format the petition. Clackamas County's Law Library sent him relevant materials, including a template for a civil petition, other relevant statutes to help Koepping write the pleading and a 2018 Oregon legislative news release that focused on legislation passed by the House for an improved process to remove racist language and discriminatory restrictions from real estate documents. That later became the law ORS. 93.274.
"House Bill 4134A came about after co-chief sponsor Rep. Julie Fahey, D-West Eugene, Bethel, Junction City, discovered discriminatory 'restrictive covenant' in the deed to her home," according to the release. "These covenants, primarily from the first half of the 20th century, prevented some people, based on their race, from buying or renting in certain communities. This legislation updates the legal process to remove the discriminatory covenants."
This is referring to the petition process.
Rep. Andrea Salinas, D-Lake Oswego, also sponsored this legislation, which was passed by the Senate in late February 2018.
Katharine Ryan, Fahey's legislative director, said they are working with the Oregon Bar Association to create a template and case study for people to use as an example when filling out their own petition.
Koepping completed and submitted the petition to the circuit court Aug. 10.
"One (of the materials from the law library) was a link to the Uniform Trial Court Rules. It is 17 pages long, lacks any complete examples of a pleading (though does have some recommended phraseology), and assumes a deep understanding of the legal system," Koepping said in an email. "The other link was a link to Clackamas County specific rules. It is 32 pages long, also lacks complete examples of a pleading and also assumes a deep understanding of the legal system. … In summary … this process is in no way 'pretty easy' and is certainly complicated enough to discourage most people."
Koepping is awaiting a letter announcing the court's ruling on the petition.
"She couldn't give us a timeline for when that might be," he said. "Writing the document only took about two to three hours. The time-consuming part was the weeks gathering the real estate information, finding a template, and figuring out what exactly needed to be included. I think the process, at this point, would be beyond the reach of most people."
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