The Rule in Shelley's Cases

[Michael MASINTER]

I would be more convinced by Rick and Mike if were it not for the
universal willingness to enforce restrictive covenants which forbid
occupancy by children (even your own), and which foreclose from the market
an even greater number of users.  At least applied to children of the
prospective purchaser, such covenants quite deliberately burden familial
association, requiring parents to choose between their home and their
child.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu

On Tue, 22 Apr 1997, Rick Hills wrote:

>         In defense of Professor McConnell's position, the problem with racially
> restrictive covenants is not that they do not serve public policy.  The
> problem is that they restrict the class of persons who can purchase real
> estate.  That is, they limit users rather than uses.  The common law
> generally frowns on limitations on the types or number of persons who can
> purchase land.  It is not covenants in general that must serve public
> policy but rather <italic>this particular type of covenant</italic>.
> because of this background suspicion on restraints on alienation to
> classes of persons, any state enforcement of such restraints is obviously
> state action.  This does not mean that a covenant against painting your
> house purple or barring satellite dishes somehow has to advance public
> policy, because there is not the same background norm against restraints
> on particular uses as opposed to particular purchasers.
>
>
>         Thus, the rule in Shelley v. Kramer is deeply rooted in rules like the
> Rule in Shelley's Case: because the common law favors marketability and
> discourages covenants, remainders, or the like that limit<italic> the
> class of people</italic> to whom land is alienated, all such restrictions
> must be subject to careful scrutiny.
>
>
>         Rick Hills
>
>         University of Michigan Law School
>
>
> Doug Laycock writes:
>
>
> >        Some of my colleagues who teach property had the same reaction
> as
>
> >Art.  They also said the common law rule was not that the covenant
> serve
>
> >public policy, but that it not be contrary to public policy.  Suppose
>
> >Missouri simply has no public policy on private segregation.  Then
> what?
>
> >
>
> >At 01:09 PM 4/21/97 -0400, you wrote:
>
> >>I thank Michael McConnell for his post on Shelley v. Kraemer.  It seems
> to me
>
> >>also that the case is a lovely application of sound common law public
> policy
>
> >>reasoning in the real property field.  As such, it would have been an
>
> >>entirely proper and commendable decision by the Missouri Supreme Court.
>  What
>
> >>I have found puzzling when trying to think about Shelley is how the
> U.S.
>
> >>Supreme Court gets to overrule the Missouri Supreme Court on a matter
> of
>
> >>common law.  Is there something in the U.S. Constitution that
> requires
>
> >>Missouri to adhere to the common law rule that restraints on alienation
> of
>
> >>real property held in fee simple absolute are disfavored?
>
> >>
>
> >>In Prof. McConnell's role as explainer of why seemingly lawless
> liberal
>
> >>decisions actually make sense, I would very much welcome his further
>
> >>explanation.
>
> >>
>
> >>Art Spitzer
>
> >>_________________
>
> >>In a message dated 4/21/97 10:31:18 AM,
> michael.mcconnell at LAW.UTAH.EDU
>
> >>(Michael McConnell) wrote:
>
> >>
>
> >>>I sometimes think my role in life is to explain why
>
> >>>seemingly lawless liberal decisions actually make sense.
>
> >>>Shelly is such a case. The key thing to realize about
>
> >>>Shelly is that restraints on alienation of real property
>
> >>>held in fee simple absolute are disfavored under the common
>
> >>>law and can be upheld only if they are found to serve
>
> >>>public policy. Thus, the racially restrictive covenants at
>
> >>>issue in Shelly were unenforceable as a matter of common
>
> >>>law *unless* the public policy of the State of Missouri
>
> >>>supported racial segregation, which would be
>
> >>>unconstitutional. This is a perfectly straighforward
>
> >>>application of standard "state action" doctrine.
>
> >>>
>
> >>>We should stop talking about "limiting" Shelly to racially
>
> >>>restrictive covenants, which implicitly suggests that
>
> >>>Shelly was unprincipled. If Shelly was right, it should be
>
> >>>given as wide an application as its rationale demands.
>
> >>>
>
> >>>
>
> >>>-- Michael McConnell (U of Utah)
>
> >>
>
> >
>
> >
>