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August 25, 2000/24 Av 5760, Vol. 52, No.50
Bill makes housing restrictions illegal
BARRY COHEN
Community Editor
In 1948, restrictions on selling a house to Hispanics, blacks or Jews became unenforceable. Fifty-two years years later, these restrictions became illegal.
When Dr. John Polacheck of Tucson was signing the legal documents to purchase his new home in December 1997, he read that his prospective property "shall not be sold, conveyed, leased, rented or occupied" by any individuals "not members of the white or Caucasian race except that such person or persons are employed thereon as domestic servants."
When Polacheck asked about the binding nature of this passage, he was told the restriction became unenforceable in 1948 by the U.S. Supreme Court ruling (Shelley v. Kraemer), citing the 14th Amendment, which states in part, "no State shall ... deny to any person within its jurisdiction the equal protection of the laws."
But Polacheck was not satisfied.
"When I sell the property, I do not want to confront anyone with an offensive document," he said.
His efforts to make these restrictions illegal culminated with Senate Bill 1164, which Arizona Gov. Jane D. Hull officially signed March 15 this year, but ceremonially signed Aug. 16 at a press conference, reflecting Arizona's racial, ethnic and religious diversity.
"I was somewhat surprised we are still dealing with this type of law in the year 2000," said the Rev. Oscar Tillman, chairman of legal redress of the Maricopa Chapter of the NAACP.
"Hispanics, Latinos and those of Mexican descent were most greatly impacted by (restrictions) by their proportional size in Arizona," said Edmundo Hidalgo, chief operating officer of Chicanos Por La Causa.
The bill, sponsored by state Sen. Marc Spitzer (R-Ariz.) and co-sponsored by state Sen. George Cunningham (D-Ariz.), states in part, "restrictions that are based on race, religion, color, handicap status or national origin are invalid and unenforceable."
This bill was difficult to draft for a number of reasons.
Spitzer explained it had to address the concerns of county reporters and title companies. The goal was to find a way to avoid violating "common property law." Altering documents, he said, invalidates them, as if they no longer exist.
County reporters opposed this because "they do not have permission to eliminate documents recorded in the past," said Spitzer.
An equally problematic alternative, said Polacheck, was to address existing property laws.
"It's very difficult to amend subdivision law. In our case, it was impossible." said Polacheck.
In addition, Spitzer said there is no guarantee that a piece of legislation will receive bi-partisan support. Polacheck acknowledged that Cunningham helped ensure the bill passed smoothly through the legislature.
"Cunningham should not be undersold," stressed Polacheck. "He's the consensus-maker."
One of the reasons, Spitzer explained, it took so long to make neighborhood racial and ethnic restrictions illegal is that many lawyers, landlords, and realtors took the attitude, "they are unenforceable, so who cares?"
Another problem, explained Polacheck, is that in Arizona, "once a deed restriction has been officially recorded, it cannot be removed" because after a real estate document is filed with the county clerk, the vocabulary cannot be changed, even when the stipulation, such as forbidding the selling of the house to a minority, is unenforceable.
Francie Noyes, press secretary for Hull, said, "It's a good bill. It is important to reaffirm the state's commitment to equality and non-discrimination."
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