Amendment of Mitman Neighborhood Covenants to Remove Unlawful Restrictions
NOTE – This is NOT legal advice. Any legal questions should be addressed to a licensed attorney.
The “DECLARATION OF ESTABLISHMENT OF CONDITIONS, RESERVATIONS AND
RESTRICTIONS” for the Mitman Neighborhood were adopted in 1947. Paragraph 10 restricts the sale of lots within the neighborhood to “those of the White or Caucasian race” while allowing business property to be owned by “Asiatics.” In 1948, the US Supreme Court decided in Shelley v. Kraemer that private covenants restricting housing based upon race did not violate the equal protection clause of the Fourteenth Amendment because they were private agreements and not “state action.” However, should someone seek judicial enforcement of such a restriction, it would become a prohibited state action.
The Fair Housing Act of 1968 prohibits discrimination in housing (based on race, religion, sex, and various other attributes). This federal law overrides any state law or private agreement that restricts housing based upon race, etc. As such, paragraph 10 of the Mitman covenants became unenforceable though the restrictions continue to be listed in deeds passed to new property owners.
Paragraphs 11 and 12 of the Mitman Covenants provide a method of amending the covenants. This amendment procedure requires a vote showing the majority of the property owners favor the amendment.
In 2024, SB 1432 was approved by the Arizona legislature and signed by the governor. The legislation provides an easier and more accessible way for property owners to remove racist or otherwise unlawful restrictions from their deeds. The legislation was initiated by the Tucson chapter of the NAACP after a local resident discovered a discriminatory clause in his deed. Under this legislation, the board of directors of a home owners association may amend their governing documents to remove discriminatory restrictions. The Mitman neighborhood does not have a home owners association. For properties not governed by a home owners association, the legislation provides a form that can be used by the property owner(s) to amend the covenant to remove the prohibited restrictions. A fillable PDF form is available here.
To find the legal description of a property, go to Property Research Online. Enter the address in the Address Search box. On the right side of the results page, click on “Assessor, Recorder, Treasurer, …’. The Legal Description is shown near the top of the page.
The Pima County Recorder Self Service web page has a method to record a document electronically. The filing fee for a miscellaneous document is $33. Note the Recording Requirements. To meet the margin requirements without going to two pages, the form we are providing is to be printed on legal size paper (8.5 x 14 inches). A sample recorded amendment is here.