RACIAL RESTRICTIVE COVENANTS IN ENGLAND AND THE UNITED STATES
| Author | J. F. Garner |
| Date | 01 September 1972 |
| Published date | 01 September 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02360.x |
RACIAL RESTRICTIVE COVENANTS IN
ENGLAND AND THE UNITED STATES
Is
a restrictive covenant providing
for
racial discrimination in the
sale
of
premises, such for example as one providing that
“
the
premises shall be used and occupied only by persons
of
the white
or
Caucasian race,” valid and enforceable
?
This is the problem we
are here considering in relation to English law, and the Federal law
of
the United States
of
America.2
A.
ENGLISH
LAW
Any consideration
of
English law in relation to this problem must
start with an examination
of
the appropriate provisions
of
the
Race Relations Acts
1965
and
1968.
c‘
Discrimination
”
in
the
sense used in the statutes and in specified circumstances is declared
to be
“
unlawful,” although
it
is not made a crime. Section
5
of
the
1965
Act more specifically prohibits discrimination by
a
land-
lord when his “licence
or
consent” is required
for
the disposal
to any person
of
‘‘
premises comprised in a tenancy.” Clearly this
provision applies to a covenant in a lease prohibiting assignment
or
sub-letting without the prior consent
of
the landlord
4;
but does
it
also apply where there is a total prohibition on assignment
or
sub-
letting? The effect
of
such an unqualified covenant
is
to
prohibit
assignment, but the landlord may always consent to a waiver
of
1
A
common form of such covenants, the validity
of
which has been questioned
before the
U.S.
Supreme Court: see, for example, the covenant in
BUTTOWS
v.
Jackson,
346
U.S.
249 (1952).
*
These problems cannot wise, at least not in this form, under Continental legal
systems iased
on
the Napoleonic Code Civil, which knows nothing of such
“
rights enforceable against third parties, but which do not fall within a
recognisable category of servitudes.
3
Discrimination in the English Acts refers to discrimination in matter:, of
‘‘
dour, race or ethnic or national origins,” and
“
racial discrimination as
used in this article should be understood in that somewhat wider connotation.
4
Any such consent is in such a case not to be unreasonably withheld (Landlord
and Tenant Act
1927,
8.
19),
and to withhold consent
on
racial grounds would
clearly be acting unreasonably;
as
in
Mills
v.
Cannon Brewery
[1920] 2
Ch.
38,
where a landlord who refused to consent to an assignment
on
the ground
that the assignee had
a
German name and was
of
German origin, was held
to have acted unreasonably, and his consent was therefore dispensed with.
On
the other hand an Irish court in
Schlegel
v.
Corocan
[1942]
I.R.
19,
held
that it was not unreasonable to refuse consent to the assignment of
a
lease-
hold interest in professional premises to a Jewish dentist. Anti-Semitism
in
Ireland in
1942
was
not apparently
a
mere
“
caprice,” but
“
it
is
too prevalent
as
a
habit of mind to be dismissed off-hand in
a
country where religion
matters, as the eccentric extravagance
of
a bigot.” Bigotry, at least in matters
of religion, has been only too obvious in Ireland in recent times, but it seems
unlikely, to say the least, that such reasoning would have been thought to be
part
o€
the common law of England.
478
To continue reading
Request your trial