to require the Recorder to affix to every liber volume a notice that such restrictive covenants are void and unenforceable. And finally they seek a declaration that their rights are being infringed by the Recorder's acceptance for filing of instruments containing such covenants.
Plaintiffs claim that the Recorder's actions in accepting for filing and maintaining public records of racially restrictive covenants cast a cloud on title, inhibit the selling and leasing of property, and, additionally, are in direct violation of Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq.
Defendants have moved to dismiss the complaint on the grounds that the Recorder has not the legal authority to perform those functions demanded by the plaintiffs and that in the performance of his duties he is not impinging on the rights of the plaintiffs nor violating the Fair Housing Act.
After hearing arguments and after studying the briefs and pertinent legislative history of the Fair Housing Act, the Court concludes that it must grant defendants' motion to dismiss.
The Supreme Court decided years ago that racially restrictive covenants are void and non-enforceable. Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). So, this Court is concerned now only with the practical effect of the covenants, with the nature of the activities of the Recorder of Deeds, and with the thrust of § 3604(c).
(A) Insofar as plaintiffs contend that such covenants cast a cloud on title and affect marketability of their property, their argument to this Court seems tenuous at best. As owners and would-be sellers of their property it is clearly within their own powers to repudiate any offensive clauses contained in their deeds and advise intending purchasers of such repudiation either directly or through the interested brokers. It is stretching too far to say that the presence of the offensive language in a deed in the custody of the Recorder is going to frighten a would-be buyer. We must face the practicality that buyers do not begin their negotiations by examining the records maintained by the Recorder of Deeds. That function is performed by brokers, attorneys and title insurance companies making the record searches. Brokers, lawyers and title insurance companies are fully aware that racially restrictive covenants are not enforceable.
(B) It also appears to the Court that the plaintiffs entertain misconceptions as to the functions of the Recorder of Deeds. By statute, 45 D.C. Code § 701 et seq. (1967 ed.) his activities are ministerial and his discretion is limited. He does not have the authority to determine the legality of a document presented to him for filing nor the enforceability of any portion of such document. He is not even permitted to alter obvious typographical errors in such instruments. He can neither add nor strike words from the documents presented to him. As the Court of Appeals said shortly after enactment of the statute:
"Undoubtedly, the Recorder of Deeds is in the category of ministerial officers, and has no jurisdiction to pass upon the validity of instruments of writing presented to him for record. It requires no elaboration of law or of the authorities to sustain this contention." Dancy v. Clark, 24 App. D.C. 487, 499 (1905).