New Mexico still has no way to strike racist covenants from a deed
New Mexico still has no way to strike racist covenants from a deed
2026-09-15 · New Mexico · Legislation · Did not pass
Mid-century racial covenants are still physically printed in the recorded chains of title of New Mexico subdivisions, and New Mexico still has no statutory mechanism to strike them. A 2025 bill that would have created one cleared a committee and then died.1
What HB 114 would have done
The bill, from Reps. Eleanor Chávez and House Majority Leader Reena Szczepanski, worked by amending the New Mexico Human Rights Act, Section 28-1-7 NMSA 1978. Its title states the whole scheme:
“PROHIBITING THE SUBMISSION OF A DEED OR OTHER INSTRUMENT OF WRITING TO THE OFFICE OF THE COUNTY CLERK THAT HAS ATTACHED A DISCRIMINATORY RESTRICTIVE COVENANT OR GENDER-SPECIFIC LANGUAGE; DECLARING VOID UNLAWFUL DISCRIMINATORY RESTRICTIVE COVENANTS; REQUIRING THE REMOVAL OF UNLAWFUL RESTRICTIVE COVENANTS, RESTRICTIONS AND CONDITIONS FROM INSTRUMENTS AFFECTING THE TRANSFER OF REAL PROPERTY BEFORE INSTRUMENTS CAN BE RECORDED; PROVIDING THAT A DEED OR OTHER INSTRUMENT OF WRITING MAY INCLUDE A STATEMENT THAT A DISCRIMINATORY RESTRICTIVE COVENANT IS VOID AS AGAINST PUBLIC POLICY.”
Three distinct mechanisms sit in that title: a recording bar going forward, a declaration of voidness, and a removal requirement for instruments presented for recording.
How it died
HB 114 was prefiled and referred to House Government, Elections & Indian Affairs on January 27, 2025, dual-referred to House Judiciary. HGEIC reported it Do Pass, as amended, on February 22, 2025. House Judiciary never heard it. API at sine die, March 22, 2025.
What is true today about these covenants
A racially restrictive covenant has been judicially unenforceable since Shelley v. Kraemer in 1948, and is separately unlawful under the federal Fair Housing Act. Nobody is at risk of one being enforced against them.
That is not the problem the bill addressed. The problem is documentary. The covenant remains in the recorded instrument, which means it remains in the title chain, which means it is still in the package of documents an association or a title company hands a buyer at closing. Purchasers in older Albuquerque, Santa Fe and Las Cruces subdivisions routinely receive a declaration that contains language excluding them by race or national origin, printed without comment.
Roughly two dozen states have adopted a redaction, restrictive-covenant-modification or “void and strike” process to deal with exactly that. New Mexico has not.
What an association can do without a statute
Three routes exist, none of them supplied by state law, and they differ in what they actually accomplish.
Amend the declaration. The cleanest fix. An association can amend its own declaration to delete the offending language, using the amendment threshold its declaration specifies. This changes the operative document going forward. It does not alter the historical recorded instrument, which remains in the chain.
Record a disclaimer or repudiation instrument. Some New Mexico associations have recorded a statement that a discriminatory covenant in the original declaration is void and repudiated. HB 114 would have expressly authorised a version of this — a statement that the covenant is “void as against public policy” included in a recorded instrument. Without the statute, the practice rests on general recording law rather than on an express authorisation, which is a meaningful difference to a cautious title examiner.
Do nothing and disclose. The default. The covenant stays, unenforceable, and appears in every resale package the association produces.
Why the drafting route matters
HB 114 was a Human Rights Act amendment, not a real-property amendment. That choice put it in front of House Judiciary, where it stopped, and it also meant the bill's operative force ran through the state's anti-discrimination statute rather than through Chapter 47. A future version routed through the recording statutes would face a different committee path.
What to watch next
No 2027 successor has been announced and nothing is prefiled. For associations, the practical question is not whether these covenants are enforceable — they are not — but whether the board is content to keep handing them to buyers while the state provides no process for removing them.
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