Restrictive Covenant Modification

History

A covenant is a legally enforceable contract imposed in a deed upon the buyer of property. Racially restrictive covenants refer to legal agreements that prohibit the purchase, lease, or occupation of a piece of property by a particular group of people and that prohibit the homeowner from selling or renting to anybody of a specific race or ethnic background.

Restrictive covenants were an effective way to segregate neighborhoods and stabilize the property values of white families, and beginning in 1934, the Federal Housing Authority recommended the inclusion of restrictive covenants in the deeds of homes it insured. These racially restrictive covenants made it illegal for many races other than Caucasian to purchase, lease or rent homes in white communities. In a landmark 1948 ruling, the Supreme Court deemed all racial restrictive covenants unenforceable. While Titles VIII and IX of the 1968 Civil Rights Act, also known as the Fair Housing Act, prohibited discrimination in the sale, rental, and financing in housing-related transactions based on race, color, national origin, religion, sex, disability, marital status, and familial status, many restrictive covenants continue to remain in property deeds throughout Sonoma County.

Removal of Unlawful Discriminatory Covenants from Property Documents

Prior to 1/1/2022, a person who held an ownership interest of record in a property were eligible to submit a Restrictive Covenant Modification form to the County Recorder with the unlawfully restrictive covenant language stricken (strike-through).

Beginning 1/1/2022, Assembly Bill 1466 authorizes a person who holds an ownership interest of record in property that the person believes is the subject of an unlawfully restrictive covenant in violation of Government Code Section 12955(l) to record a Restrictive Covenant Modification document to have the illegal language redacted (blacked-out). Unlawful restrictions include those restrictions based on age, race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, veteran or military status, or ancestry.

Beginning 7/1/2022, any person including those who do not have an ownership interest in the property, including County Recorders, to record Restrictive Covenant Modifications to address unlawful restrictive covenants.

How to Record a Restrictive Covenant Modification: 

  • This information is valid from 1/1/2022 through 6/30/2022
  • Submitter must hold an ownership interest of record in the property
  • Complete a Restrictive Covenant Modification form
  • Attach a copy of the original document containing the unlawful restrictive language with the unlawful language redacted (blacked out).
  • Submit the completed document to the County Recorder.
  • There is no fee to record this document

Upon receiving, the County Recorder will submit the document to County Counsel who will determine whether the original document contains any lawful restrictions, as defined in Government Code Section 12956.2(b).  Only those determined to be in violation of the law will be recorded and those that are not will be returned to the submitter unrecorded.

Please note that the County Recorder is not liable for modification not authorized by law.  This is the sole responsibility of the holder of ownership interest who caused the modified recordation per Government Code Section 12956.2(f).

Removal of restrictions related to affordable housing developments

Beginning 1/1/2022, Assembly Bill 721 authorizes owner of an Affordable Housing Development(s) to submit a copy of the original restrictive covenant and a Restrictive Covenant Modification-Affordable Housing document pursuant to Government Code Section 12956.2 that modifies or removes any existing restrictive covenant language that restricts the number, size, or location of the residences that may be built on the property, or that restricts the number of persons or families that may reside on the property, to the extent necessary to allow the affordable housing development to proceed under the existing declaration of restrictive covenants.

How to Record a Restrictive Covenant Modification-Affordable Housing:

  • Submitter must be the owner of the affordable housing development
  • Complete a Restrictive Covenant Modification-Affordable Housing form; this must be signed in front of a notary public
  • Submit a copy of the original restrictive covenant, a copy of any notice the owner believes is required pursuant to paragraph (3) of subdivision (g), and any documents the owner believes necessary to establish that the property qualifies as an affordable housing development under Civil Code Section 714.6 prior to, or simultaneously with, the submission of the request for recordation of the restrictive covenant modification document.
  • The County Recorder shall, within five (5) business days of receipt, submit the documentation provided to County Counsel for review.
  • County Counsel shall determine whether the original restrictive covenant document restricts the property in a manner prohibited by subdivision (a), whether the owner has submitted documents sufficient to establish that the property qualifies as an affordable housing development under this section, whether any notice required under this section has been provided, whether any exemption provided in subdivision (g) or (h) applies, and whether the restriction may no longer be enforced against the owner of the affordable housing development and that the owner may record a modification document pursuant to this section.
  • County Counsel shall return the documents and inform the County Recorder of their decision within fifteen (15) days of submission to County Counsel.
  • The fee to record this document will be $14/first page and $3/each additional page.  The document is exempt from the $75 SB2 Building Homes and Jobs Act Fee.

Restrictive Covenant Program Plan

More information on the County Recorder’s Restrictive Covenant Program plan will be posted by 7/1/2022.  

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