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Tuesday, May 27, 2008

Deed Restrictions

I was in Houston earlier this weekend and through the steamy air (and between BBQ and Bluebell), I saw some signs that made my tired legal eyes pop.  Some Houston neighborhoods have signs with the name of the neighborhood in the median of the major thoroughfares when one enters the neighborhood.  The signs for several neighborhoods also announced "DEED RESTRICTIONS ENFORCED."  Could this mean what I fear it means?!!  What sort of restrictions are being enforced?  No blacks?  No Jews?  No Mexicans?  No Irish?  No Catholics?  Or is this just about maybe, uh, private building restrictions?

I assumed the worst until a Google search brought me to this Houston municipal webpage.  It seems that because Houston does not have any zoning, the city takes an interest in enforcing deed restrictions to effect zoning.  So maybe this is the city's way of announcing that it is doing backdoor zoning.  It's a very weird way of choose-your-own-adventure government, but maybe it fits with the Texas libertarian ethos. 

Still, even if the signs really do refer to zoning issues, I wonder if the signs might still be a problem because of the way anyone not familiar with Houston land use issues would perceive them.  If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome. 

Given the history of deed restrictions to effect racial segregation, Houston municipal signs seem very troubling to me.  The closest analogy I can think of is a Southern diner with two lines roped off, one of which is labeled "Whites Only," to designate it as a line for cholesterol conscious people who want egg whites, not yolks.  But there's no state action there (maybe a government run cafeteria?) 

Why announce public enforcement of private zoning restrictions in an oblique way on neighborhood signs, but only in some neighborhoods?  It'd be really easy for someone to get the wrong message--that is, if it really is the wrong message. 

Posted by Adam Levitin on May 27, 2008 at 11:38 PM in Constitutional thoughts, Property | Permalink


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You are so out of touch, I cannot stop laughing:


Posted by: Michael Morton | Oct 6, 2008 1:06:42 PM

I am an officer of a neighborhood organization in Houston which has deed restrictions and which has the little "deed restrictions enforced" signs attached to our neighborhood marker signs. The purpose of the signs are several:

1. To inform new residents that this is a community where there are restrictive covenenants on the use of property

2. To inform persons searching for a new home that the community has deed restriction protections in effect. Some communities in Houston never had deed restrictions, while others had time limitations which have now expired.

3. To inform residents that the community takes the effort to enforce the restrictions (if you do not try to enforce your restrictions then you will lose the ability to be able to enforce them).

4. There is a bit of peer pressure involved. If one community puts "deed restrictions enforced" on its markers, then surrounding communities feel they also need to do so.

I resent the comments about segregation in Houston from people who admit they have not been here or who just breezed thru briefly. They should realize that Houston in a highly INTEGRATED city. My own community is multicultural, our board of directors is multicultural, our schools are multicultural, and I live within a 15 minute drive to a house of worship for almost any faith found on this planet.

However, they are correct that some of the very old deed restrictions in some neighborhoods (thankfully not my neighborhood) contain restrictions about race or religion which are no longer enforceable. Unfortunately, the state of Texas made it difficult to change deed restrictions to update them until recently, but much adverse publicity about the power of foreclosure by some homeowner associations still makes it difficult to change deed restrictions in many communities.

Posted by: Cindy | Jun 5, 2008 5:41:34 PM

My post was pretty simple, but seems to have engendered a lot of misunderstanding. Let me recap, in the hope that it will clarify things: Prior to my time in Houston this weekend I have never seen a sign in any city reading "Deed Restriction Enforced" or the like. My first reaction was "OMG, is this actually a sign about restrictive covenants?" After doing a little research, I happily learned that was not the case. To Houstonians, the signs' meaning might be perfectly obvious and benign. But someone could quote reasonably get the wrong message. A lot of people, and hardly just law professors, might reasonably think that it referred to racially/religiously restrictive covenants, and was announcing their presence in an oblique way, so as to skirt the law. The mere fact that something is illegal hardly means that people don't/won't do it, as "Houstonian" naively believes.

Finally, a word about Houstonian's callow parting remark that "when you're a certain law professor, every collective covenant between landowners looks like racism." Let's see. I study credit, payments, and financial institutions. How does that predispose me to seeing everything as a racial issue? What's the racial element to capital requirements and bankruptcy claims trading and credit default swaps? While you try to figure that out, let me provide a more accurate statement: when you are a member of a group that has suffered discrimination in the past you are more likely to be sensitive to potential discrimination. But as Kristin's comment rightly elucidates, the perception of the DRE signs depends heavily on one's familiarity with Houston and (I would add) the cultural references one brings to the plate.

Posted by: adam Levitin | May 29, 2008 8:22:09 PM

I think the decision to announce deed restrictions in the form of signage has to do with the community's wish to attract residential-minded buyers and dwellers. Because of Houston's no-zoning stance, there is a real fear that you could buy a lovely home, only to have the home next to you become a raucous bar. When I drive through a neighborhood that says "Deed Restrictions Enforced", I immediately think "quiet and kempt", not "racially intolerant". The DRE signs also exist in areas with a large number of renters, who may or may not have been warned by their landlord that they have to mow the grass.

Posted by: Kristin | May 29, 2008 5:49:18 PM

"Or is this just about maybe, uh, private building restrictions?"

Yes, deed restrictions, at least here in Houston, are private covenants. Remember covenants running with the land?

"The signs for several neighborhoods also announced 'DEED RESTRICTIONS ENFORCED.'"

The reason these signs are so prevalent is because they increase, or at least stabilize, property values. In non-deed restricted neighborhoods, the house next door can *literally* become anything from an auto repair shop to a beauty parlor to a Toys R Us overnight, and there's nothing you can do about it. Thus, Houston neighborhoods enter into these joint covenants.

"If I were moving to Houston, I would immediately rule out living in any neighborhood with a 'Deed Restrictions Enforced' sign because I would think that it was a 'restricted' neighborhood where I was not welcome."

What would you think that the restriction was? No law professors? You do realize that such has been illegal for nearly half a century and that, in any event, no neighborhoods in Houston have any restrictions eliminating ownership based on a person's status. But if you were contemplating moving to Houston without being willing to do a tedious google search researching the respective deed-restriction, then I doubt the city would want you to move here anyway.

I am reminded of a saying of Mark Twain -- when some people have a hammer, for them every problem looks like a nail. Well, I guess when you're a certain law professor, every collective covenant between landowners looks like racism. Even if it's just to keep out the auto repair shops.

Posted by: Houstonian | May 29, 2008 5:42:51 PM

I actually think Adam's reaction to this sign is atypical of law professors, and much more representative of what the general public would think such a sign implies. Because I teach property, when I hear "deed restrictions", I think merely of the commonplace restrictive covenants that require mundane things like residential use only or no swimming pools, etc. But if I didn't have these issues in the forefront of my mind--which the vast majority of Americans don't (one assumes and hopes)--I'd likely think of the well-known and pernicious iterations of deed restrictions that excluded racial and religious minorities from housing developments.

That said, it's still puzzling that these neighborhoods find it necessary to announce that deed restrictions are enforced. At first blush, this announcement seems redundant. Don't we normally assume that laws (including private governance regimes) are enforced? So this could be a sort of "we mean it" amplifier, like the signs I've seen that emphasize that speed limits are strictly enforced. But the particularly strange thing about these signs is that deed restrictions can relate to just about anything that doesn't violate public policy, so a reader wouldn't know what kind of deed restrictions are at issue. (Just like a sign that said "Welcome to Jonesburg: Local Laws Strictly Enforced!" I'd take this to be just a general indicator that the locality likes to think of itself as a strict law-and-order jurisdiction.)

Posted by: Dave | May 29, 2008 5:04:30 PM

My apologies for misidentifying commentators.

But for Saddened--it's always a shame when someone starts arguing about what they wish I wrote, rather than what I wrote. I called Saddened and anon jerks, not antisemites on account of their comments that had no purpose other than snarkiness. I played the Jew card for the point that people who have been discriminated against might be more attuned to negative linguistic connotations (intended or not). And in my original post I wrote about how I was surprised upon doing research that the Houston signs do not mean what one might reasonably infer. No where did I demand pleasing language. In short, Saddened has a syllogism constructed entirely of strawmen. But no more of arguing with snarks. In the future, I'll just delete the comments.

Posted by: Adam Levitin | May 29, 2008 4:24:14 PM

It was Rick Hills, not me, who made an assertion about an ostensible relationship between Houston's lack of zoning and its degree of residential segregation. I merely pointed out that the data on residential segregation fail to support the premise (upon which Rick rested his assertion that "if you are worried about segregation, then you should love covenants") that Houston is a relatively non-segregated City. And, of course, even if it were true that Houston had a relatively low degree of residential segregation, Saddened's question would be equally applicable to Rick's assertion: the question would still be whether Houston would be more or less segregated with zoning.

Posted by: Eric | May 29, 2008 11:39:37 AM

Adam: I am a Jew too, with all the requisite Jewish attributes and then some, but this doesn’t give me an excuse to (a) demand that everyone uses the language I find pleasing; (b) make sweeping conclusions about the content of other people’s communications without even attempting to understand what those communications mean; and (c) renounce as anti-Semites everyone who airs points (a) and (b). Alvy Singer's "did Jew eat" lines were supposed to be a satire, not a manual.

Re Eric’s statistical musings: the fact that Houston is a highly segregated city says nothing about the impact of zoning on segregation. The question is not whether Houston is more segregated than New York, but what Houston would have been if it had zoning.

Posted by: saddened even more | May 29, 2008 10:32:11 AM

Curiously enough, paskudnyak is one essential Yiddish word that is absent from Kozinski & Volokh's seminal work on Yiddishisms in judicial opinions. Aptly used as applied to "Anon" and "SBNS", who are also shvuntz.

Posted by: eric | May 28, 2008 10:26:20 PM

I'm fascinated to learn from the comments about Houston's no-zoning experience and its debatable costs and benefits. Houston has never struck me as a very well integrated city, but I don't have any empirical evidence to bring to bear. It seems to me that lack of zoning might also account for Houston's flooding problems, but that's another issue.

But for nudniks like "Saddned, but not surpirsed" and "Anon"--you're too keen to bash me as some sort of out-of-touch HLS ivory tower creature. I'm a Chicagoan born and bred, and a Southsider no less, so I've been aware of deed restrictions long before I ever embarked on a legal career. One doesn't have to go to law school, or even read "A Raisin in the Sun" or Richard Wright novels, etc. to know about restricted neighborhoods. And if you are from a group that's been kept out, you're more likely to be aware of restrictive covenants. But that's all I have to say to you paskudnyaks (go look it up).

For Jennifer Hendricks--maybe another analog are signs proclaiming "Trespassers/shoplifters will be prosecuted [to the full extent of the law]." As if the prosecutorial decision were a private citizen's.

Posted by: Adam Levitin | May 28, 2008 6:50:55 PM

"If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome."

And it wouldn't even occur to you to ask what that sign mean? Do you always demand that everyone speaks new-englandese?

Posted by: saddned, but not surpirsed | May 28, 2008 3:07:20 PM

There is non-trivial evidence that Houston's reliance on covenants rather than zoning promotes affordable housing, because it is harder to exclude affordable housing from the city with covenants, which tend to be finer grained than zoning districts. David Rusk lists Houston as one of the less segregated cities in the nation (albeit in a horribly flawed study of annexation).

I have to wonder if the rest of this "non-trivial evidence" is any better than the "horribly flawed study" by David Rusk. Contrary to Rusk's assertion, the most widely-recognized measure of residential segregation places Houston fairly high on the list of the most segregated metro areas in the nation -- number 41 based on the 2000 census (http://www.s4.brown.edu/cen2000/WholePop/WPsort/sort_d1.html)
And, in Lois M. Quinn and John Pawasarat's block-level analysis (http://www.uwm.edu/Dept/ETI/integration/integration.htm), Houston ranks in the bottom third among the 50 largest U.S. cities in the proportion of residents living in integrated blocks.

There may be other virtues to Houston's reliance on private covenants rather than zoning. But residential desegregation ain't one of them.

Posted by: eric | May 28, 2008 2:43:20 PM

"If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome."

The key is that the "I" in this sentence is a law professor. Folks who haven't gone to law school, and live in 2008 not 1948, probably won't have such a Pavlovian response.

Posted by: anon | May 28, 2008 11:23:23 AM

What percentage of the population is going to know that deed restrictions used to, in some cases, mean "No Minorities?" What percentage of those people don't know that deed restrictions can mean just about anything and that "No Minority" restrictions are unenforceable and have been for decades? I'm guessing we're talking about just about no one.

Posted by: paul | May 28, 2008 10:46:37 AM

If you dislike racial and other forms of segregation. you should love Houston's rejection of zoning and reliance on covenants. Let me explain.

Houston has famously been studied by land-use lawyers for years as the one last remaining redoubt against zoning. In several ballot initiatives, proponents of zoning have tried to zone Houston, to no avail. The late Richard Babcock, dean of land-use lawyers, reports that zoning has been opposed by a coalition of upper-class Houstonites who rely on covenants to meet their zoning needs, and low-income residents -- often Black residents -- who like to mix commercial and residential uses to maximize the value of their home. Middle-income residents like zoning, because covenants are expensive to enforce, and they do not like certain types of housing in their neighborhood. It is widely recognized that this support for zoning is blunted by the willingness of the state to assume the costs of enforcing those covenants. Of course, Shelley v Kraemer eliminates the danger of racist or anti-Semitic covenants' being enforced.

There is non-trivial evidence that Houston's reliance on covenants rather than zoning promotes affordable housing, because it is harder to exclude affordable housing from the city with covenants, which tend to be finer grained than zoning districts. David Rusk lists Houston as one of the less segregated cities in the nation (albeit in a horribly flawed study of annexation).

In other words, Adam, if you are worried about segregation, then you should love covenants.

Posted by: Rick Hills | May 28, 2008 6:42:03 AM

This is very interesting. I recently gave a talk that addressed a similar evil, the persistence of signs in retail stores that say “We Reserve the Right to Refuse Service to Anyone” (draft write-up available on SSRN!). Based on my animosity to such signs, I would be expected to agree with you that a practice associated with segregation should be avoided because of its historical ickiness, even if the current intent is different. But I wouldn’t have reacted the way you did, I think because it is so obvious that racial restrictions are illegal and there has been enough publicity about other kinds of deed restrictions, like the ones against clotheslines. I would have assumed the latter were intended. My reaction would have been negative, but that would have been because I don’t like people who try to make clotheslines illegal. But perhaps you are right that the prominent advertising of unspecified deed restrictions is sending a different sort of signal.

Posted by: Jennifer Hendricks | May 28, 2008 2:19:16 AM

I'm not familiar with how Houston operates, but aren't these signs simply referring to private covenants in the city's various subdivisions? It's pretty common for residential neighborhoods to create these kinds of private governance regimes, though perhaps they take on more significance in a city like Houston that lacks a public property governance regime.

It is very strange for neighborhood signs to emphasize that these restrictions are enforced, though, and if I weren't a property professor I might have had the same reaction when seeing them. Most of the kids in my property class assume that covenants and deed restrictions relate to the kinds of racially restrictive covenants at issue in Shelley rather than the more innocuous iterations that commonly prevail (no commercial use, setbacks, aesthetics, etc.).

Posted by: Dave | May 28, 2008 1:51:36 AM

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