Outdated Covenants on Claremont Titles: Removing Dead Language

Pull the recorded documents behind an older Claremont home and you will often find language written for a world that no longer exists. Restrictions on building materials that no supplier stocks. Requirements referencing an architectural committee that dissolved decades ago. Setback language superseded by the city's own code. And, on properties in many California communities, RACIALLY RESTRICTIVE COVENANTS: unlawful, unenforceable, and still physically present in the paper chain. This article covers which old covenants still bind, which are dead letters, why dead letters remain visible in the record at all, and the process California created for modifying the worst of them. It deepens the title and closing guide; how these documents surface in a transaction is the preliminary report guide's subject, and how the searcher finds them sits in the title search guide. Standing frame: what a specific covenant does or does not require on your property is a legal question. A title officer and a real estate attorney govern.

Why old restrictions are still in the file

The public record is a permanent archive, not an edited document. When something is recorded it stays recorded, and later law does not reach back and delete it. An unenforceable covenant recorded generations ago is still in the chain because removing a recorded instrument is not a thing the system generally does; the record grows by addition, with later documents modifying, releasing, or superseding earlier ones.

That single mechanical fact explains almost everything owners find confusing here. Seeing a restriction in your title documents does not tell you whether it binds you. It tells you it was recorded. Enforceability is a separate question answered by law, by the terms of the instrument itself, and sometimes by what has happened in the neighborhood since.

Racially restrictive covenants

Covenants restricting ownership or occupancy by race, religion, national origin, or similar protected characteristics were widely used in the first half of the twentieth century across Southern California. They are unlawful and unenforceable. Courts held that judicial enforcement of such covenants was unconstitutional, and federal and state fair housing law made the practice unlawful outright. No title company will insure around one as a live restriction, no court will enforce one, and no owner is bound by one.

What they are is offensive and, for many owners, genuinely upsetting to encounter in their own property records. California responded with a statutory process allowing an owner to record a RESTRICTIVE COVENANT MODIFICATION that strikes the unlawful language from the effective document, with a county process for review before recording. The modification is recorded alongside the original; the historical document remains in the archive, but the operative text is corrected going forward. County recorders and title companies have also been given statutory roles in identifying this language.

The process, the forms, the review, and any fees are set by statute and by county practice, and both have changed in recent years. Confirm the current procedure directly with the Los Angeles County Registrar-Recorder or with a real estate attorney before filing anything. Do not rely on a form found online or on a description in an article, including this one.

Covenants that are dead for other reasons

Plenty of old language is unenforceable without being unlawful. Some covenants carried an EXPRESS TERM: they applied for a stated number of years, sometimes with automatic renewal periods unless a majority of owners objected, and a careful reading may show the term ran out long ago.

Some depend on machinery that no longer exists. A restriction requiring approval by a committee that was never re-formed after the original developer left may have no functioning enforcement path, though the answer depends on the exact wording and on whether any successor entity exists.

Some are superseded in practice. A covenant requiring a specific roofing material may sit alongside a city code that governs the same subject differently, and the interaction of a private restriction with public code is an attorney question rather than an obvious one.

And some are arguably abandoned. Where a restriction has been widely and openly ignored across a tract for a long period, that history can bear on whether a court would enforce it now. That is a fact-intensive legal argument, not a conclusion an owner should reach on their own.

Covenants that are very much alive

The dangerous mistake runs the other direction: assuming that because a document is old, it is dead. Recorded restrictions that are lawful, unexpired, and tied to a functioning association or to successors in interest bind current owners regardless of age. A private restriction can be stricter than public code, and complying with the city does not mean complying with a recorded covenant.

Practical examples in older neighborhoods include restrictions on subdividing a lot, limits on the number or type of structures, prohibitions on certain commercial uses, and requirements around fencing or frontage. Where an association still exists, its governing documents are a live enforcement mechanism. A restriction that stopped you from doing what you bought the property to do is a problem to discover during the inspection period, not after.

Reading them before you own the property

The preliminary title report lists recorded documents as EXCEPTIONS by title, date, and recording reference. The report itself does not reproduce the text, and this is the step most buyers skip. Request the underlying documents from the title company and read them, or have someone qualified read them.

When you read, ask four questions of each restriction. What exactly does it require or forbid, in its own words? Does it state a term, and has that term run? Who, if anyone, has the standing and the machinery to enforce it? And does it conflict with what you actually intend to do with the property? A restriction you have no interest in violating is not a problem; a restriction sitting directly across your plans is the whole ballgame.

What modification does and does not accomplish

Modifying unlawful language corrects the operative document and removes offensive text from what governs the property going forward. It does not erase history, and it is not a general-purpose tool for deleting restrictions an owner finds inconvenient.

Removing a lawful but unwanted covenant is a different and much harder undertaking. Depending on the instrument, it can require agreement from the parties with the benefit of the restriction, action by an association under its own amendment procedures, or a court proceeding. There is no administrative counter where an owner simply asks for a valid restriction to be taken off.

If a covenant is genuinely blocking a use and it appears unenforceable to you, the correct order of operations is: get the actual recorded text, take it to a real estate attorney, and get a written opinion before spending money on the ground. Building first and arguing later is how a paper problem becomes a construction problem.

The broader sequence from title report to recording sits in the title and closing guide linked above, and how the searcher assembles the chain these documents live in is covered in the title search guide. Anthony Grynchal has been licensed in California since November 2009.