For decades, non-white people were denied ownership or occupancy of homes in Hillsdale by language recorded in property deeds. African-Americans, Asians or other groups were sometimes specifically excluded. Other times, the exclusions were broader, applying to anyone who was not white.
A U.S. Supreme Court decision in 1948 ruled that deed restrictions were unenforceable. The Fair Housing Act of 1968 made housing discrimination based on race illegal. Yet the language persists in property title documents in our neighborhood, in Portland, in Oregon, and across the country. (See the related Hillsdale News article.) Sometimes the restrictions are partially covered with a stamp to indicate that they are omitted or unenforceable.
Until HB4134 was passed in 2018, streamlining the process and eliminating court fees, removing racial exclusions from deeds required the help of an attorney and could cost thousands of dollars in legal fees. Even after the passage of the law, the process was not simple, as described in this story in the Southwest Community Connection.
Last fall, the Oregon Judicial Department released a set of forms to make it easier for homeowners to access the process outlined by the new law. Find links to the forms and a set of instructions for navigating the process here.
Former State Representative Alissa Keny-Guyer was a chief sponsor of 2018’s HB4134. The bill, she says, was introduced to call attention to the 50th anniversary of the 1968 Fair Housing Act and the racial disparities in home ownership that still exist today.
In his testimony in support of HB4134, Allan Lazo, executive director of the Fair Housing Council of Oregon, detailed Oregon’s long history of discriminatory practices, beginning with 19th-century constitutional prohibitions on property ownership by Black and Chinese people, continuing into the 20th century with racially restrictive clauses in property title documents, and beyond, to redlining (denying loans in Black neighborhoods) and the practice known as “steering” in which realtors discourage minorities from buying property in “white” neighborhoods. The real power of HB4134, Lazo said in his testimony, is that it allows us to “reflect on the continuing disparities that racial discrimination, segregation, and displacement have created today.”
Racial discrimination in home ownership in Hillsdale
Anne Prescott was appalled in 2007 to see the racially exclusive language in the deed for the house she was considering purchasing in Hillsdale. Attached to the deed was a covenant, created in 1940 by owners of properties in what is now known as the “Sunset Triangle,” that contained a paragraph restricting anyone not of the “Caucasion or white race” from using or occupying the property unless employed as a servant.
The language made her wonder, Prescott says, about the neighborhood and the people who might become her new neighbors. Although as a white person she would not have been subject to the clause, she felt the power of the unwelcoming message it would send to a potential buyer who was not white. “Seeing that felt terrible,” she says. “I think that really restricted people of color from having the same freedom that I had to be able to purchase the house.”
Prescott bought the house, and once she got to know her neighbors she found that the racial exclusion in her deed did not reflect their values. But the existence of the clause continued to bother her until finally an opportunity arose in 2017 to remove the exclusion from the covenant governing her property and others in the Triangle.
Among the covenant’s articles were several that prevented current owners from subdividing and building additional housing on their property. The covenant had been modified once before, in 1967, to allow for the commercial development of many of the office buildings on the south end of the Triangle. In 2017, a majority of owners decided it was time to modify the covenant once again to allow the construction of more homes, and Prescott pushed for removal of the racial exclusions as well. “Making those changes reflects our values and who we want to be or who we want to grow to become,” she says now.
Moving towards equity in home ownership
Keny-Guyer acknowledges that the 2018 law’s value is mainly symbolic and says that the real impact will come from two bills currently under consideration in the legislature’s 2021 session: HB 2007 and SB 79 A, each of which propose measures to increase home ownership among people of color in Oregon.
Another way to improve racial equity in home ownership, says Keny-Guyer, is mortgage interest deduction reform being proposed in the current legislative session. SB 852 would eliminate the second-home mortgage state tax deduction, phasing it out or eliminating it completely above certain income levels for primary residence mortgages (the changes begin to take effect at income levels of more than $200,000 a year). The revenue gained, estimated at up to $180 million in 2023-25, would go to support affordable home ownership and homelessness prevention.
Tax policies that allow deductions for mortgages are among “the most racist policies in our country because for decades and for centuries we excluded home ownership to people of color,” Keny-Guyer says, making home ownership more affordable for white people and making it more difficult for people of color to accumulate wealth that can be passed to their descendants. Sixty-six percent of homeowners in Oregon are white and 37% are black, according to data published by the Oregonian/Oregonlive.
What can Hillsdale residents who want to address the racial disparity of home ownership in our neighborhood do? Keny-Guyer says those who want to see change can support legislation to reform home mortgage interest deduction as well as voice support of diversity in our neighborhood and in home ownership.
Archivists may argue that, while offensive, examples of past racist housing policies are an important part of the historical record. Activists may add that preserving racially exclusive language can help spur reforms to remediate the inequities brought about by past policies. Those who, like Hillsdale homeowner Anne Prescott, feel that erasing this language is important to moving forward to a new, more equitable future, might choose to use the new process to remove evidence of past discrimination from their property deeds.
--Valeurie Friedman
Have you checked to see if your deed contains racial exclusions? If so, will you go through the legal process to have them removed, or do you plan to? Let us know.
Erase the evidence or preserve the record -- what do you think? Let us know.
How to remove racial exclusions from your deed
Many thanks to Alan Brickley, Amy Houchen, Layla Kailani McLean and Ode Minton-Smith of Lake Oswego firm Buckley Law, Jennifer Rollins and Carrie Wilton for their help and guidance in drafting this overview of the process. This attempt to describe the necessary steps is not legal advice, your experience may differ.
Step 1: Locate your deed to see if it contains racial restrictions.
If you don’t have a copy in your files, you can look up your property at the Multnomah County division of Assessment, Recording and Taxation (DART) (Multnomah County division of Assessment, Recording and Taxation (DART). It may be necessary to visit the DART office in person. See the website for details. Copy fees may apply. A real estate agent may also be able to get this information for you at no cost.
Step 2. Download and complete forms.
There are four forms in the Discriminatory Property Provisions packet provided by the Oregon Judicial Department. Two additional forms that you may find helpful are provided here.
Following is a list of the forms, how to fill them out, and what to do with them.
1. Petition to Remove Discriminatory Provisions (two pages). File this form with the circuit court for the county where the property is located. There are no filing fees for the Petition. The Petition can be filed in person (when the courts are open to the public again), by mail or online. The court clerk will provide you with a case number when the Petition is filed or over the phone if filing by mail. Find more information on how to file a case here.
2. General Judgment to Remove Discriminatory Restrictions to Real Property Records. Complete this form and send a copy to any other owners listed on the property title (see #3 below for more information on this). Hold on to the original, you will submit it later to the Court. To complete this form, fill in the exact language to be removed in the same way as written in the Petition (including page number, section, and paragraph, as applicable) on Line 15 where it says The discriminatory provisions to be removed from the title of the real property is/are as follows. On Line 20, write in the information requested or attach a copy. The Judge will check the appropriate box following the line: NOW THEREFORE, it is hereby ORDERED AND ADJUDGED that: The General Judgment form must meet the requirements in ORS 205.232:
Text must be typed, written, or printed in 8-point type or larger
Page size must be between 8 1/2" x 11" and 8 1/2" x 14"
Paper must be of a quality that can be photocopied or otherwise reproduced
There must be enough space for the recording sticker (4" x 2") to be placed on the first page of the document (preferably in the upper right hand corner)
3. Notice of Petition to Remove Discriminatory Provisions (one page). If there are other owners listed on the property title (including creditors such as banks, mortgagees, or other lienholders) you must notify those individuals or entities that you have filed the Petition. Review your mortgage or related loan documents to locate mailing addresses of creditors. After filing the Petition and receiving a case number, send the Notice form to each owner or creditor as described above. Send the Notice, a copy of the Petition that you filed with the court, the completed General Judgment form, and the Request for Hearing form (you do not have to fill out the Request for Hearing form) to the owners and persons or entities entitled to Notice, by registered or certified mail. Write the case number on each document or form that you are mailing. The other owners or creditors have 20 days to object and file the Request for Hearing form with the Court. If there is no request for a hearing filed by any party entitled to Notice within 20 days (plus three days for mailing) of you sending the Notice, Petition, General Judgment form, and Request for Hearing form, the Court may enter the Judgment into the Court records without a hearing.
4. Request for Hearing re: Discriminatory Provisions (one page): If there are other owners or creditors listed on the title, you must include this form when you send them the Notice of Petition to Remove Discriminatory Provisions and a copy of the Petition. You do not have to fill out this form.
5. Affidavit of Service (one page). Once you have sent the Notice form to any other owners and creditors, complete the Affidavit of Service form and sign it before a notary. File the Affidavit of Service with the court. Notaries are often available at banks, law offices, AAA, real estate offices, parcel shipping stores such as FedEx or UPS. Notary fees are $10.
6. UTCR 5.100 Certificate of Readiness. (In the same PDF as the General Judgment Form). You will complete this form and file it with the Court once the required notifications have been made and the period for a hearing to be requested (23 days) has passed.
Step 3: If 23 days have passed from the date you sent the required forms to the other owners or creditors and no one has objected, you may file the General Judgment and UTCR 5.100 with the Court to be signed by the Judge and entered into the Court record.
Step 4: Once the Court has signed the Judgement, you may choose to record the Judgment with the County Assessor’s Office so that when the property is sold or mortgaged the title company will be able to see it as recorded in the county's property records.
Request an Authenticated Court-certified copy of the Judgment from the court clerk, which is simply an additional page included on top of the Judgment. It may also be referred to as an “exemplified copy” or a “3-way certificate” and is preferable to a Court-certified copy, which adds a stamp to the back of the Judgment that can hinder the recording process. Submitting an Authenticated Court-certified copy will often avoid issues that can arise with a Court-certified copy. Find information on how to request copies and fees here.
Download a Recording Cover Sheet, complete and attach to the Authenticated Court-certified copy of the Judgement. Submit both to the County recorder’s office with the recording fee.
Recording fees are based on the number of pages that will be recorded. In Multnomah County the recording fee is $16 for the first page, $5 for each additional page. For help calculating the fee for filing your documents, call the Multnomah County Recorder’s office. The Recorder’s office will accept personal checks or certified funds, payable to the Multnomah County Recorder.
The Recorder’s office is closed to the public during the pandemic, but documents can be recorded via mail or a dropbox at the county assessor’s office.