Week 6: Limitations On Covenants

Question 1

Rules & Bylaws

Answer 1

1. Challenges governed by statute:
   (1) requires restrictions to be in initial covenant
   (2) amend CCR’s in the project declaration
   (3) violates common law
2. Restraint on alienation (prevents owners from selling)
3. Preferences to owners —> discrimination

Question 2

Post-Civil War, New Body of Con Lse

Answer 2

13th A = outlaws slavery
14th A = no one shall be deprived of due process, equal protection or privileges/immunities of citizenship (birthright)
15th A = outlawed racial discrimination with respect to voting

Courts looking to work their ways around these
- limited federal protection to state action (gave individuals more freedom for unlawful activity)

Question 3

Historical urban design

Answer 3

1. Racial segregation early function of emergent administrative state
   - rich neighborhoods started using racially segregated covenants
   - cities started racial zoning but then ruled unconstitutional
2. Buchanan v. Wallet, courts stopped cracking down on racial zoning
3. Unavailability of bank financing —> more disadvantages for black peoples

Question 4

Brooks & Rose on racially-restrictive covenant functions

Answer 4

1. Not in tightly-knit communities
2. In wealthier but less stable ones
3. Games as proxies for effects on RRC’s:

• assurance game: either everyone cooperates or goes on their own (need internal signal). When people think neighborhood is changing, will turn into…
• prisoner’s dilemma: individual payoff greater when noncooperation (sell while others cooperating so get highest price)
• hawk/dove: best outcome is where each party plays different role (communicating to outside world that outsiders not welcome); some assurance (covenants) needed

covenants on deeds maintained segregation

Question 5

How is Shelly consistent with people’s exclusion rights and why the Missouri Supreme Court rises to state action?

Answer 5

1. Proxy for racial zoning
2. Case is an ouster—total affront to Shelley’s rights —> reaches threshold of state action
3. CL disapproves restraints on alientationc
4. Right to buy and sell is rooted in 13th Amendment
   - forbade badges of servitude

Question 6

Post-Shelley

Answer 6

1. Housing discrimination continued
2. Courts rarely analyze if constitutional rights are implicated and don’t regard as state actions
   - feels private but really it’s collective action