Discriminatory Covenants in Your Deed: What Virginia's New 2026 Law Requires
Discriminatory Covenants in Northern Virginia: What HB 39 Requires & What to Do
As of July 1, 2026, Virginia's HB 39 requires the title or settlement company handling your Northern Virginia purchase or sale to notify you in writing if a title search turns up a restrictive covenant that once tried to limit who could buy, occupy, or rent a property based on race, religion, national origin, sex, or other protected characteristics. These covenants are void and unenforceable under Virginia Code § 36-96.6, and they still turn up regularly in deed books for older sections of Arlington, McLean, and Falls Church recorded before the 1968 Fair Housing Act. You have the right to strike one from your title by recording a Certificate of Release under Virginia Code § 55.1-300.1 — a process you can do yourself, without a lawyer, and it will not delay or block your closing.
- Virginia's HB 39 (effective July 1, 2026) requires settlement agents to flag discriminatory covenants found in your title search.
- They're most common in deed books for pre-1968 sections of Arlington, McLean, Falls Church, and older Fairfax County subdivisions.
- The covenants are already void under Virginia Code § 36-96.6 — they cannot be enforced against you either way.
- Removing one means recording a Certificate of Release (VA Code § 55.1-300.1) with the circuit court clerk — no attorney required.
- It's illegal for anyone to charge you a fee to file the release — ask your title/settlement company for the form at closing.
Buying or selling in one of Northern Virginia's older, established neighborhoods this year? You may see something on your title report you weren't expecting — and it's worth understanding before it catches you off guard at the settlement table.
Virginia's HB 39: What Changed at Settlement & Why It Matters Now
Virginia's General Assembly passed HB 39 in its 2026 session, and it took effect July 1, 2026. The law adds a specific requirement to every residential real estate settlement in the state: your title or settlement company must notify you, the purchaser, of your right to remove a prohibited restrictive covenant if one is disclosed during the title search on your property.
A restrictive covenant, in this context, is language written into an old deed, subdivision plat, or homeowners association declaration that once tried to limit who could buy, live in, or rent a home based on race, color, religion, national origin, sex, familial status, or similar protected characteristics. Virginia Code § 36-96.6 already declared these covenants void and contrary to public policy — they've had zero legal force for decades. What HB 39 adds is a disclosure requirement: your settlement agent now has to tell you, in writing, if one turns up.
This matters for Northern Virginia specifically because so much of the region's housing stock predates 1968. Neighborhoods across Fairfax County, inner Arlington, and the older sections of McLean and Falls Church were platted and sold in the 1930s through 1960s, when this kind of language was standard boilerplate in developer deeds. It's not evidence of anything happening today — it's a relic sitting in the chain of title that the title search pulls up like any other recorded instrument.
Virginia is a caveat emptor state, meaning buyers are generally responsible for their own due diligence. HB 39 is a narrow, specific exception to that default: on this one issue, the law puts the burden on your title/settlement company to speak up, not on you to go digging through 80-year-old deed books yourself.
Where These Covenants Show Up: NoVA Neighborhoods & What the Language Looks Like
Your title/settlement company runs a title search on every purchase and refinance in Virginia, checking the chain of title back several decades to confirm clear ownership and find any liens, easements, or restrictions still attached to the property. A discriminatory covenant is just one more thing that search can surface — usually buried in the original subdivision deed or a homeowners association's founding declaration, not anything a current seller added.
The language typically reads as an ownership or occupancy restriction tied to a protected class, often bundled into the same clause as unremarkable setback rules or architectural requirements from the original developer. It was common practice nationwide before the federal Fair Housing Act of 1968 and Virginia's own Fair Housing Law made it illegal and unenforceable.
In practice, this shows up most often in:
- Older platted subdivisions in Arlington and inner Alexandria recorded before 1968
- Established neighborhoods in McLean and Falls Church built during the same era
- Some of the oldest developer-created subdivisions scattered through Fairfax County, particularly closer to the older town centers
Newer NoVA communities — including most of Reston, which was master-planned starting in 1964 with integration as a founding principle, and the majority of Loudoun County's post-1970s development — are far less likely to have this issue simply because of when they were built. But "less likely" isn't "never," so it's worth a quick look at your title report either way, whether you're buying, selling, or just curious about a home you already own.
Removing the Covenant: The Certificate of Release Process & Timeline
Here's the part sellers and buyers both find reassuring: fixing this is neither expensive nor legally complicated, and it will not hold up your closing.
Virginia Code § 55.1-300.1 created a specific mechanism for this — a Certificate of Release of Certain Prohibited Covenants. It works like this:
- Identify the covenant. Your title/settlement company will point you to the specific deed book and page where it's recorded, since that's what triggers the HB 39 notification in the first place.
- Complete the certificate. The form is designed to be filled out without an attorney — it substantially follows a template set in state law, and your settlement agent can typically provide it.
- Record it with the circuit court clerk. You file the certificate in the land records for the county or city where the property sits — Fairfax County Circuit Court, Arlington County Circuit Court, or the applicable jurisdiction's clerk — for the standard recording fee.
- It's done. Once recorded, the certificate formally strikes the covenant from your property's chain of title going forward.
One protection worth knowing: it's illegal in Virginia for anyone to solicit or accept payment for filing this release on your behalf. Violators are on the hook for triple the amount charged (or $500, whichever is greater) plus attorney's fees. If someone offers to charge you a fee to "clear" a covenant for you, that's a red flag, not a service.
You can record the certificate before your settlement day or any time after — it doesn't need to happen before closing, and it won't affect your owner's title insurance either way, since the covenant is already legally void regardless of whether it's been formally struck from the record. If you're weighing whether title insurance is worth it on your purchase generally, that's a related question I cover in my guide to owner's title insurance in Northern Virginia.
Frequently Asked Questions: Discriminatory Covenants in Northern Virginia
Q: Does finding a discriminatory covenant in my deed mean I can't close on my Northern Virginia home?
A: No. The covenant has been legally void and unenforceable for decades under Virginia Code § 36-96.6, so it has no bearing on your ability to buy, sell, or finance the property. HB 39 only adds a notification step — your title/settlement company tells you it's there and explains your right to remove it, but it does not pause or complicate your settlement day.
Q: Who is responsible for telling me about a covenant like this — my real estate agent or the title company?
A: Under HB 39, the legal obligation falls on the settlement agent — the title/settlement company handling your closing — not your real estate agent. That's separate from the question of who chooses the title company in the first place, which in Virginia is the buyer's decision, not the seller's or the listing agent's.
Q: Does it cost money to remove a discriminatory covenant from my Virginia deed?
A: You'll pay the standard circuit court clerk recording fee to file the Certificate of Release, but that's it. Virginia law makes it illegal for anyone to charge you a service fee to file this release on your behalf, and violators face damages of triple the fee charged or $500, whichever is greater, plus attorney's costs. If you're weighing other costs tied to buying or selling right now, a personalized home valuation is a good place to start.
Q: My home is in an older section of McLean, Arlington, or Falls Church — should I check for this before I list?
A: It's a reasonable step if your neighborhood was platted before 1968, since that's when this kind of covenant language was still common in developer deeds across McLean and similar established NoVA communities. It won't stop your sale either way, but clearing it ahead of time means one less item for your title/settlement company to flag mid-transaction.
Q: Does a discriminatory covenant affect my home's value or my ability to get title insurance?
A: No. Because the covenant has no legal force, it doesn't affect your property's marketability, your ability to get owner's or lender's title insurance, or your home's value. Title insurers treat it as a non-issue precisely because Virginia Code already voids it — for more on how title insurance works in Northern Virginia generally, see my blog's full library of buyer and seller guides.
Q: Is this the same thing as an HOA disclosure packet or a Virginia Residential Property Disclosure Statement?
A: No. Those are separate documents covering different information entirely. A discriminatory covenant notification under HB 39 is specific to what the title search finds in the deed's chain of title, and it applies regardless of what the seller does or doesn't already know about their own property. Visit my homepage for the full picture of what to expect at each stage of a Northern Virginia transaction.
If you're buying or selling in Northern Virginia and want to understand exactly what your title search — or your home's current market value — actually looks like, I'd be glad to help. Whether you're preparing to list or just want a clearer picture of where things stand, find out what your home is worth today, or schedule a consultation and we'll walk through it together.
About Samantha Bard, REALTOR®
Samantha Bard is a licensed REALTOR® with Coldwell Banker Realty specializing in the Fairfax County and broader DC Metro real estate markets. As an Accredited Buyer's Representative (ABR) and Seller Representative Specialist (SRS), she provides strategic, detail-oriented guidance to buyers, sellers, and investors navigating everything from first-time purchases to probate sales and out-of-state relocations. She is dedicated to helping clients across Northern Virginia make informed, confident real estate decisions.
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