Thursday, October 28, 2010

Race-based restrictions: unenforceable but still present

A story from this past summer from South Coast Today, the website of the New Bedford Standard Times, told an interesting (and somewhat disturbing) tale of old land records. An attorney was doing a foreclosure and, in preparing the Notice of Mortgagee's Sale for publication in the newspaper, copied exactly the property description contained in the mortgage being foreclosed. Unfortunately, the language used there had been carried forward through the years without change and still contained a deed restriction limiting the sale of the property to "Caucasians only." When this restriction appeared in the current-day legal notice, many readers were outraged and the Massachusetts Commission Against Discrimination was called in.

All seem to agree that such a restriction is completely unenforceable today, but because it is contained in the property description (and the property in question was registered land and therefore under the jurisdiction of the Land Court), the only way to remove it is by petitioning the court. Here's what a representative of the Land Court had to say:

Striking these restrictions from the certificate of title can be done only by court order, in what Deborah Patterson, recorder of the Land Court in Boston, described as a swift process. Typically, she said, the registered land sections of local registries of deeds petition the court on owners' behalf, and the state and registry in New Bedford waive the associated fees.

Since the controversy over 115 Cottonwood St., the land court has directed the local registries to petition the court whenever a transaction involves a racial restriction, regardless of whether the property owners request it, according to Susan Morris, land court supervisor in the New Bedford office.

The few restrictions we've seen in this registry (mostly directed against the Irish) have been on the recorded land side of the registry, so those restrictions have been unilaterally removed by attorneys through the years. It's good to know now the proper procedure for land court records in the event we come upon such a conviction that happens to be Registered Land.

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