What is Heirs Property?

The History of African-American Land Ownership

In the short span of time between the close of the Civil War and 1920, African Americans obtained nearly 20 million acres of land in the United States. Collectively, these acquisitions represented nothing short of a heroic achievement in a society largely hostile to African America property ownership. These original purchasers used land ownership to participate meaningfully in the economic and political life of the nation and to impart a legacy to future generations. They hoped that land ownership would lead to self-sufficiency, economic opportunity, and political participation for their descendants. Over the decades, this land has come to represent not only a potentially substantial asset to otherwise cash-poor individuals, but an essential connection to history, family, and culture.

Today, while some low-income African-American families in rural areas (but also in some urban areas) continue to own significant land holdings that have been passed down over the generations, the vast majority of this land has been lost over the last 90 years. The causes are numerous, and include illegal acts by unscrupulous lawyers, acts of violence against black landowners to drive them off their property, and massive discrimination against black farmers by the USDA. However, one additional major cause is an inability to utilize the legal system due to income, discrimination, or a well-founded distrust of that system.

The Creation of Heirs' Property

The result of lack of access to the legal system is that property transfers have occurred generation after generation without the benefit of wills or estate plans. In the absence of such tools, the ownership of land has become increasingly fractionated with the passing of each generation.

Without a will (or a carefully drafted will), property quickly descends into an untenable, multi-owner situation. For instance, if an owner passes away intestate (i.e., without a will), and that owner has five children, those five children will each have an undivided 1/5 interest as "tenants in common" (the legal term for heirs' property). "Undivided" means that each has the right to use and occupation of the entire property. If each of those 5 heirs has 5 children themselves, then when the original 5 heirs die there will be 25 owners. As the generations pass, there are more and more owners, sometimes hundreds.

The Problem of Heirs' Property

Unfortunately, fractional ownership greatly increases the risk that an heir (or a land speculator who has purchased an heir’s share) will attempt to force a partition sale, or that the land will be lost to tax default. Worsening the problem is that many default rules governing such legal processes, particularly governing notice and the examination of the parties’ interests, are fundamentally inequitable. For instance, the partition laws in all states permit any one of the fractional owners, no matter how small their share and how recently they acquired it, to ask a court to sell the entire property at auction against the will of all of the remaining owners. In some states, if the court finds that dividing the property would prejudice even one owner, the court can order the entire property sold. In determining whether the property should be divided amongst the heirs or sold at auction, the law in some states only allows the court to consider whether the property is worth less divided than whole, while ignoring evidence of use of the property as a primary residence, longstanding family ties to the property, or other extremely important noneconomic considerations. Studies have shown that at these auction sales, heirs receive a tiny fraction of its actual value. And as a final indignity, the attorney representing the fractional owner seeking sale is paid out of the sale proceeds, not by their client, meaning that in effect all of the owners pay for that attorney, even those that opposed the sale in the first place.

Most low-income families with real property holdings do not have the resources to organize multiple heirs under an effective ownership structure. Without organization, these families are unlikely and unable to develop practical visions for utilizing or maintaining their real-property assets, or stabilizing the ownership against the threats of partition and tax default. And in addition to the obvious collective action problem presented, these families often experience some level of internal conflict. For example, a conflict involving even a single member of the ownership group can undermine efforts to promote stable ownership and result in a forced partition sale. These families and communities have a significant need for legal assistance on ownership structures as well as information and advice on long-term strategies for land preservation and development.

Public Awareness of the Problem

There are significant myths about heirs' property that abound in low-income communities, such as the perception that tenancy-in-common is the safest form of ownership, that the family member who lives on the property and pays the taxes has a superior form of ownership, or that one owner cannot force a sale without the permission of the other owners. Additionally, thousands of forced sales have happened quietly across the South and caused loss of homesteads and livelihoods, with little or no media attention devoted to it. This caused one advocate to call the situation, "the worst problem that no one's ever heard of."

Nonetheless, academics have noted that heirs' property, by its very nature particularly causes land loss among African-American farmers. The USDA acknowledged this as well in its most recent Notice of Proposed Rulemaking on Heirs Property. The problem is particularly severe for minority communities (and especially in the South), where landowners have frequently been stripped from their land either through trickery, misuse of the law, or even violence, as occurred in Pierce City, Georgia, Tulsa, Oklahoma, and Wilmington, North Carolina.

Additional Heirs' Property Information

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