Uniform Laws in Other States

Published on July 26, 2023

Honorable Eugenia Thornton, Kent County Recorder of Deeds says, "Delaware led the way among States that addressed the problem of unlawful restrictive covenants in deeds and HOA and Condiminium documents.  Subequently, the Uniform Law Commission took up this subject, and as you will read, our law fits into what they consider to be the "model" law on how to handle this situation."

Uniform Law Commission Approves Uniform Unlawful Restrictions in Land Records Act

Robinson, Katie

Posted 07-26-2023 10:45 PM

July 26, 2023 - The Uniform Law Commission (ULC) has approved a new uniform state law that will allow a property owner whose deed contains an unlawful and unenforceable restriction to record an amendment to the land records that effectively removes the restriction. The Uniform Unlawful Restrictions in Land Records Act was approved by the ULC today at its 132nd Annual Meeting in Honolulu, Hawaii.

An unlawful and unenforceable restriction (often referred to as a discriminatory restrictive covenant) is a restriction inserted into a deed that was intended to prevent the affected property from being sold to or occupied by persons covered by that restriction. Throughout the first half of the 20th century, owners and developers of real property commonly inserted restrictive covenants into deeds and declarations. 

Many antiquated and objectionable unlawful restrictions still exist, though they are no longer enforceable. The presence of these unlawful and unenforceable restrictions in the chain of title does not have title consequences for an owner of land in an objective sense. Nevertheless, such restrictions remain in the chain of record title to millions of parcels of land, and the continued presence of those restrictions are open to public view and potentially open to disclosure and publication each and every time that someone searches title to one of those parcels.   

Under the Uniform Unlawful Restrictions in Land Records Act, individuals who own property, including owners in common interest ownership properties that is subject to a prohibited restriction are empowered to record an amendment to the governing instruments that removes the restriction.  With an amendment to the land record, the historical land record is not altered. To remove an unlawful and unenforceable restriction under this Act is to amend a record chain of title, not to disturb or destroy a historical record. 

The Act also includes an optional form that may be used by most owners to remove an unlawful and unenforceable restriction by amendment in the land records.

This Act does not affect the legality of these discriminatory restrictions. It is existing federal and state law, and not this Act, that makes discriminatory restrictions in land records unlawful. Yet, this Act accomplishes a separate legal effect by allowing property owners to remove mention of these unlawful and unenforceable restrictions from their chain of title going forward. The Uniform Unlawful Restrictions in Land Records Act creates a path forward for property owners who want to correct the record on the often painful history of their homes.

Further information on the Uniform Unlawful Restrictions in Land Records Act can be found at the ULC’s website at www.uniformlaws.org. 

Recorder Thornton adds:  Here is an AI overview of the Law, you see it is similar to that Delaware enacted many years earlier:

AI Overview

The Uniform Unlawful Restrictions in Land Records Act, a model law drafted by the Uniform Law Commission, provides a process for property owners to remove unlawful restrictive covenants from their deeds and governing documents, without altering historical records. 

Here's a more detailed explanation:

• Purpose:

  The Act aims to address the issue of discriminatory or otherwise unlawful restrictions that remain in land records, even though they are unenforceable under current law. 

• Process:

  The Act empowers property owners to record an amendment to the governing instruments that removes the unlawful restriction, effectively amending the record chain of title. 

• Key Features:
• Amendment, Not Alteration: The Act emphasizes amending the record, not destroying or altering historical records. 
• Optional Form: The Act includes an optional form that can be used by most owners to remove unlawful restrictions by amendment. 
• Focus on Existing Law: The Act does not create new laws, but rather provides a mechanism for implementing existing federal and state laws that deem discriminatory restrictions unlawful. 
• Uniform Law Commission:

  The Uniform Law Commission (ULC) is comprised of lawyers, judges, law professors, and lawyer-legislators who research, draft, and promote uniform state laws. 

• Shared State Legislation:

  The Council of State Governments (CSG) includes the Uniform Unlawful Restrictions in Land Records Act in its "Shared State Legislation" compilation, a program that details topics of importance to states. 

• States that have adopted the Act:

Arizona, Colorado, District of Columbia, Pennsylvania (substantially similar), and Washington. 

Generative AI is experimental. For legal advice, consult a professional.