Black Lands Matter: The Movement to Transform Heirs’ Property Laws

Black Lands Matter: The Movement to Transform Heirs’ Property Laws

Black Lands Matter: The Movement to Transform Heirs’ Property Laws

Legal loopholes stripped millions of acres of land from black families, but a campaign to rewrite the rules is gaining momentum.

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Sandra Thompson had looked forward to receiving a piece of her family’s inheritance when her grandmother died. As her grandmother’s adoptee, she expected to become the co-owner, along with her aunts and father, of a 4.3 acre parcel in rural Leon County in northern Florida. Family members built five houses on the land, which had been purchased with money her uncle sent home while he was fighting in the Korean War. She recalled how it “moved my family to a different wealth level. They had their own assets. My grandparents were no longer sharecroppers; they had something to give their children.”

But after her grandmother’s death, she learned that the will had not been drafted according to state law, and therefore the land fell into the legal category called heirs’ property, a form of default collective ownership where descendants receive a fractional interest in a plot, like a share of a company’s stock. Heirs’ property generally gets divided into smaller and smaller pieces with each passing generation.

Without clear titles, they can’t use their land as collateral to get loans, and they are typically ineligible for federal disaster relief. The land is also prone to being sold without the full consent of the family, because most state property laws enable a single co-owner to trigger a court procedure to sell part of the land, which can lead to a judge’s putting the entire property up for sale, often at below-market rates.

Although Thompson’s family members were all committed to keeping the property, the arduous legal process of clearing their title to the land cost about $10,000—more than the original purchase price. Thompson, who would earn a doctorate on the social issues surrounding heirs’ property, told me, “Here it is, something that I depended on all my life, family land, and now I understand that it can be lost in a minute if somebody chooses to sell to somebody, or if the taxes aren’t paid.”

Across vast swaths of the country, there are tenuously owned lands spread across family networks, spanning many generations of the country’s poorest, most vulnerable communities. Though there is no comprehensive count of heirs’ property nationwide, roughly a third of all black-owned land in the south is heirs’ property, according to ProPublica and The New Yorker—some 3.5 million acres, worth roughly $28 billion. But in recent years, a reform movement has been wending through state legislatures, rewriting the property laws to help preserve the inheritance of black communities by helping them affirm and take control of fractured land titles.

The Uniform Partition of Heirs Property Act (UPHPA) is a template for reforming state-level property law, and it dramatically changes the rules surrounding inheritance in marginalized communities. To prevent an abrupt partition sale, the UPHPA establishes due process mechanisms: Courts must notify relatives when one co-owner seeks to sell part of the land, and give heirs the ability to preempt a sale by buying that person out. If there is no purchase within the family, the court can then decide whether to divide the land or initiate a sale of the entire property. When determining whether to allow the sale, the judge is supposed to consider the owner’s “sentimental attachment” to the land, including historic or ancestral value, and other factors, like whether the land is currently used as housing. In the case of a sale, the law encourages an “open market sale,” using regular real-estate procedures, which tends to yield a more equitable price.

Under status-quo property laws, judges do have some discretion over whether to sell or divide the property. But Thomas Mitchell, a law professor at Texas A&M University and the architect of the UPHPA, said that in practice, courts usually opt for selling all the land. Without the UPHPA, he explained, judges typically apply a rigid economic analysis. “The fact that there’s been a long standing ownership of the property within the family for generations is irrelevant; the fact that the property has a historical or cultural value is irrelevant; the damage it would do to co-tenants who have been lawfully using the property—sometimes for commercial business, sometimes for basic shelter—[has] no value,” he said.

The grassroots movement that has grown around the UPHPA has had surprising success: So far, the law has been adopted by 13 states, including several Republican-dominated Southern states, and in the 2018 federal Farm Bill, Congress included language that encouraged states to enact the reforms through targeted subsidies for black-owned farms. It’s a rare bipartisan breakthrough for legislation that enhances civil rights. Mitchell calls the act “the most substantial reform to partition law since the 1800s.” The basic aim is to empower heirs’ property owners to protect, preserve, and establish their title to inherited lands.

Though it does not bar property from being sold voluntarily, the UPHPA’s reforms should help halt the hemorrhage of black-owned farmland. The amount of farmland under black ownership has plummeted from an estimated 16 million acres nationwide in 1910 to about 3 million acres in 2012. Likewise, only about 1.5 percent of farmers today are black, down from about 14 percent in 1910. Heirs’ property laws have contributed to much of this loss. Some communities such as the Gullah of Hilton Head Island in South Carolina have seen their ancestral lands, dating back to the Emancipation, virtually vanish through the attrition of heirs’ property.

For Karama Neal, a geneticist turned community activist in Arkansas, the heirs’ property reform movement has been part of a journey to reconstruct her family tree. Over the past few years, she has been working to connect with about 150 other relatives who share ownership of the rural Arkansas estate purchased by Neal’s great-great-grandfather, a formerly enslaved black farmer named Griffin Henry Belk, in the late 19th century. The rolling stretch of woodland, where her great grandparents sustained their livelihoods with farming and timber, is now at the center of Neal’s generation’s struggle to reclaim their collective heritage.

When Neal first tried to clear the title, she said, she “felt at a complete impasse,” because she feared that any attempt to sort out the estate’s legal ownership might open the possibility of a distant family member deciding, or being pressured, to sell a piece of the land at the expense of co-tenants. With so many legal uncertainties, “there was really no way to clear the title, because there was such a large group,” she said. Discovering new relatives, she added, “can be really good, but it also…puts the property at risk of being lost to the family.”

Neal spearheaded a campaign to get the UPHPA adopted in Arkansas, which eventually led to the law’s passage in 2015. Though her family is still working out the title to the land, she said, “what [the law] means is that we can actually move forward…. If you want the family to be able to continue to have that asset, not just for themselves but frankly for the community and for their future, for future generations, then you have to figure out a way to protect that.”

When campaigning for the UPHPA, advocates framed the bill in terms of bolstering the property rights. Seeking to appeal to both liberal and conservative lawmakers, including those in Republican-dominated states, Mitchell said, “it became obvious that I needed to demonstrate that this was an act that just didn’t benefit black people.” Instead he highlighted “a bill that enhanced private property rights and protected families’ real estate wealth.”

Indeed, the families who have struggled to establish their ownership to their inherited properties are diverse, including working-class families in Brooklyn brownstones, white families descended from farmers in Appalachia, and descendants of the Hispanic communities of New Mexico whose lands were ravaged in the Mexican-American war. Native American lands were also fractured throughout the late 19th and 20th centuries, fueled by federal policies that displaced populations and divided homelands.

The movement for the UPHPA gathered additional momentum with an endorsement from the American Bar Association and the creation of model legislation in 2010 by the Uniform Law Commission, a nonpartisan legal body. As UPHPA bills make inroads in state legislatures, Congress has included provisions related to heirs’ property in the 2018 Farm Bill, which contains several reforms aimed at addressing historical discrimination against black farmers—an initiative endorsed by Senator Elizabeth Warren in her campaign for the Democratic presidential nomination. Access to various federal subsidy programs for descendants of black farmers may hinge on whether heirs can clear the title to their land, which could motivate more state lawmakers to adopt the UPHPA framework.

Yet Mitchell points out that reforming property laws is one step in a larger process of reclamation. Surveys show that blacks have lower rates of making wills than whites, in part because of their communities’ lack of access to lawyers. Families without a tradition of estate planning need community-based, specialized legal advocates who can establish their legal claims and perhaps explore other more secure forms of land ownership, such as a family trust.

And then there is the challenge of securing property once a title is secured. Some advocacy groups, like the Black Family Land Trust and the Center for Heirs Property Preservation, help family networks with estate planning as well as alternative forms of development, such as cultural tourism, sustainable energy projects, or forestry.

Fixing heirs’ property rules won’t remedy the racial wealth gap by itself, but it does open a pathway for the uprooted to reclaim their rightful inheritance. “That kind of systemic structure that facilitated land loss,” Neal said, “it’s part of the whole experience of being black in America.… We set this system up that has a disparate impact and is probably intended to have a disparate impact on folks of color.”

Thompson, meanwhile, said that she is now teaching children in her family about the meaning of their inheritance, “so they understand what they have and the value it has.” Beyond the title, she reminds them, “it’s a place of shelter, of peace, of knowing that you have a place.”

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