Section 2.

The Racially-Restrictive (“Fifth”) Clause in Property Deeds in UA (1926-1948)

Upper Arlington was one of several communities across the United States in the early-to-mid 1900s with property deeds containing exclusionary clauses based on race. These racial covenants were also found in deeds in numerous subdivisions throughout central Ohio.

when did the racially-restrictive clause appear in deeds in Upper Arlington?

For the first twelve years of property sales (1914-1926) in the fledging community of Upper Arlington, property deeds filed with the county recorder contained restrictions like the “First” through the “Fourth” clauses pictured below. These focused on the types and location of buildings allowed to be erected on the property.

Then, in September of 1926, this “Fifth” clause (highlighted in the image above) begins to appear in many — but not all — Upper Arlington deeds. It reads:

“That until the 1st day of January, A.D. 1999, said premises or any part thereof, shall not be sold, leased, mortgaged, pledged, given or otherwise disposed of to, or owned, used or occupied by any person or organization of persons in whole or in part of the Negro race or blood, and this restriction shall be a condition and covenant running with the land for the benefit of any present or subsequent owner of other premises shown on said plat; provided that nothing herein shall prohibit a person, while occupying said premised in compliance with this restriction, from employing as a servant a person not of the white race.”

Most deeds with this language specify it as the “Fifth” clause, and this is how we will refer to this racially-restrictive covenant.

who put the “fifth” clause into deeds?

Developers of property typically inserted restrictions into deeds. We have seen no examples of an individual homeowner adding a racially-restrictive clause into a deed.

why was this “fifth” clause added?

At this point, we have no clear indication as to why this “Fifth” clause was added beginning in September 1926. Some theories include:

• A manifestation of societal and individual prejudices.

• Following the example of well-renowned suburbs in the U.S.

• A reaction to an increase in the Black population of Columbus during the 1920s.

• Financial (i.e., securing bank loans) or other institutional incentives to ensure the exclusion of Blacks from this developing community. At the time, the intention was to maintain property values.

• A reaction to two 1926 Supreme Court cases: (1) (Corrigan v. Buckley) which found that the existing laws did not prohibit private lot owners from rejecting sales to people of a certain race; and, (2) (Village of Euclid v. Ambler Realty Company) which questioned the constitutionality of zoning ordinances prohibiting multi-family housing units within single-family neighborhoods.

what about those first 12 years of property sales? were those homes ever subject to the “fifth” clause restrictions?

No.

Those properties already had been sold to private owners by 1926, and their subsequent deeds never included the “Fifth” clause. Therefore, an individual of any race, ethnicity or religion has always been able — from a property deed perspective — to purchase those properties.

was the “fifth” clause in all property deeds starting in late 1926?

No, but it did affect a significant number of properties deeded in Upper Arlington between 1926 - 1948, mainly lying south of Northam Road.

As we move through the decades of the 1900’s, Upper Arlington was quickly expanding northward through annexation. The number of properties within the boundaries of UA grew exponentially, and several different developers were involved with property sales. Not all deeds included the “Fifth” clause.

Those properties associated with the developer King Thompson were subject to the “Fifth” clause starting in mid-1926. This clause had not been included in deeds associated with Thompson from 1914 until 1926. In 1950, the “Fifth” clause was eliminated from his company’s forms.

However, inserting a racial restriction in property deeds was not limited to King Thompson. For example, in 1928 The Fairfax Company was deeded a group of lots in the Windermere on the Scioto subdivision (north of Fishinger and east of Riverside Drive) which included the language, “At no time shall any of the lots…be sold or conveyed…to any persons in whole or in part of the negro race…”(1). This area was annexed into Upper Arlington in 1954 at which time this statement, while still in the title histories of the properties, was no longer enforceable.

why don’t we know the specific number / Percentage of property deeds containing the “fifth” clause?

As the “Fifth” clause language specifies, once recorded in a deed, the covenant governs that property for all subsequent sales (unless, of course, deemed unenforceable or illegal) without need for the future deeds to restate the restrictive language. This creates a laborious task to uncover the specifics around the exact number of properties affected, as every deed (e.g., every transaction) for every lot in Upper Arlington would need to be reviewed.

Our objective is to present the trend which shows that in the 1930s and 1940s, this racially restrictive clause became dominant in our community. We welcome future discoveries to expand our knowledge.

when was the “fifth” clause no longer inserted into property deeds? why?

In May 1948 the U.S. Supreme Court ruled in Shelley v. Kraemer that the courts could not enforce racial covenants in property deeds, meaning this was no longer a sustainable process to prevent Blacks from purchasing property. As Richard Rothstein wrote in his definitive book The Color of Law:

“It was one thing, the Court ruled in Shelley v. Kraemer, for private individuals to discriminate. But deeds that barred sales to African Americans could be effective only if state courts enforced them by ordering black families to vacate homes purchased in white neighborhoods. Racial covenants’ power depended upon the collaboration of the judicial system and as such violated the Fourteenth Amendment, which prohibits state governments from participating in segregation.”(2)

For those properties that already had a prior deed recorded containing the “Fifth” clause, that clause remains in the records. It was not retroactively removed, but by mid-1948, it was no longer enforceable.

Contrary to what one might imagine, deeds for properties recorded after May 1948 could still contain the “Fifth” clause. Even though it was unenforceable, its mere presence may have served as a deterrent. Pre-printed forms containing the “Fifth” clause remained unedited through July of 1950, after which the clause was crossed out.

What finally made this racially-restrictive clause illegal?

In 1968 the US Congress passed the Fair Housing Act which prohibited discrimination in housing sales, rentals and financing based on race, religion, national origin, sex, (and as amended) disability and family status.

These racially-restrictive clauses were then not only unenforceable but illegal. However, the Act did not affect the language already written in the original source deed in a property’s title history. When purchasing a home today buyers will not see such language in their current deed, but a little research might uncover such a restrictive clause from a past deed.

does the “fifth” clause appear in my property deed’s title history?

Perhaps. See this link to learn how to research your deed.

So what happened once the racial-restrictive covenant was deemed unenforceable in 1948? Learn how the exclusion of Blacks — and potentially other races, ethnicities or religions — continued in a section of Upper Arlington through the formation of the Northwest Arlington Association.

References:

(1) Franklin County Recorder online database. Fairfax Community Association to The Fairfax Company, 1928 Jul 25, DB Vol 896, P 363. recorder.franklincountyohio.gov

(2) Rothstein, Richard. The Color of Law (New York: Liveright Publishing Corporation, 2017), p. 85.