From Heirs’ property is a leading cause of the loss of black land ownership in the South.
Heirs’ property is a leading cause of the loss of black land ownership in the South.
“It’s the worst problem you never heard of,” David Dietrich, co-chair of the ABA Property Preservation Task Force, recently told the ABA Journal. “These cases can be thoroughly messy and complex because you are talking about multiple heirs with multiple, and sometimes conflicting, interests.”
The little known problem in question is heirs’ property, which is most prevalent amongst black families in the South. Heirs’ property is land owned by numerous family members who received it as an inheritance from an ancestor who has died without a will. Once the land is passed along in this manner the heirs hold the property together as tenants in common, wherein each owner holds an undivided interest with the right to use and possess the property. If land continues to pass in this manner through multiple generations it can result in dozens of family members having a small interest in this land. Such fractional ownership can lead to many problems. Often times, family members with a small interest in the land will not even know they are a part owner. On other occasions family members have moved away from their ancestral land and do not have the time for or interest in the upkeep of the land. In those instances an indifferent owner might sell their interest in the land, often times to someone outside of the family or to a developer.
Unfortunately, in North Carolina once a non-heir has an interest in the property, the family often loses the ability to use the land as they see fit. Our state’s laws permit any party with an interest in the land, regardless of how small, to file a partition action. If the petitioner can prove that a physical partition of the land would harm its economic value, then he or she can force the land to be sold at auction, regardless of the size of his or her interest and regardless of the wishes of the actual heirs. Not only can a partition auction lead to land selling for less than its market value, but also, even with it being available for less than its market value, the land may remain too expensive for cashpoor families to successfully bid on. These partitions have contributed to a stunning loss of black land in the South over the past century. According to the Land Loss Prevention Project, of the 15 million acres of land African Americans acquired after Emancipation, only about 2 million acres remain owned by their descendants. In Alabama, where this problem has been thoroughly researched, the number of black-operated farms dropped from 46,032 in 1954 to 1,381 in 1992. Both of these rates of decrease far outstrip the loss of white land ownership over the same time period.
The Southern Coalition for Social Justice is active on multiple levels in the effort to stem the tide of heirs’ property land loss. During the course of the 2009 legislative session, we worked with Representative Angela Bryant to make North Carolina partition legislation more equitable. Though we did not realize all of our goals, we did improve procedural fairness in partition sales by, among other things, increasing the time for respondents to respond to a petition for partition, assigning representatives to protect the interests of unknown or un-locatable heirs, and underlining the availability of mediation in partition actions. In addition, our organization represents families responding to partition actions filed by developers pro bono to ensure they receive the best deal possible out of this tough circumstance.
However, our preference is to get involved helping families manage their heirs’ property before a partition action is filed. This permits families to be proactive and take the long view about how to best use their land for their benefit. It is also a role in which facilitation and mediation skills are imperative to overcome the challenges unique to heirs’ property
After identifying all heirs to the property in question, the first, unique challenge often becomes apparent: this will be a family introduction as well as a family mediation. In one of the cases currently handled by SCSJ there are more than 60 family members with an interest in the heirs’ property, meaning many family members and tenants in common have never met before, let alone resolved potentially contentious issues. Even in situations with fewer heirs to the land there are still many relatives who must be re-introduced after, for example, last seeing a cousin more than 30 years ago at a family reunion. In these situations, the facilitation must work to foster trust between these distant relations so that they move forward, hopefully reaching consensus in regards to managing their land. The attorney facilitating must also be cognizant of the divisions between family members still living on or near the heirs’ property and those with limited or no connections to the land, aiming to address and then transcend disagreements about whether “outof-towners” voices should count as much as those still “living at home.” Only when such trust has been established and obstacles overcome can progress be made.
Another challenge to heirs’ property facilitation is something much less unique: sometimes family don’t get along. As anyone who has ever attended a holiday celebration can attest, just because you have the same blood in your veins does not mean you are necessarily going to like someone, much less agree with him or her on something so personal as how to manage your family’s ancestral lands. Along the same lines, there are often factions within families that do not see eye to eye on issues, including, but not limited to, the heirs’ property. The facilitator must help the family navigate this minefield to reach a consensus that all family members and family groups can accept. Again, the first step in this process is identifying these conflicts and, if possible, some of the reasons underlying said conflicts. Having done so, the facilitator will not only be prepared for points of conflict along predictable battle lines, but also can formulate a strategy for de-fusing these conflicts. Often times, allowing family members to air these unrelated grievances before steering the family back to the larger and different issues at stake is a wise start. If discussions digress it is often helpful
to have a family member who is respected by all parties as a neutral arbiter serve as an ally in your efforts to get the conversation back on track. And, yes, sometimes just taking a break to let everyone clear their head and come back fresh is the best medicine. Regardless of the approach, and as Thanksgiving dinner has likely taught us all, these conflicts must be handled effectively to realize familial goals.
Finally, heirs’ property facilitations are challenging because in such family settings there are always differing levels of legal sophistication. Often such families will include an attorney, business person, or farmer who has some familiarity with how the legal system generally and property law specifically operates. On other occasions most of the family members around the table at a facilitation will have a high school diploma or less and very limited interaction with and understanding of legal processes. In both instances one of the highest priorities is de-mystifying the legal process for family members. It is also essential that the facilitator drill down, not just accepting reluctant nods as true understanding of confusing legal concepts. Perhaps most importantly, the facilitator must lay out the various options family members could pursue and encourage robust dialogue about these alternatives. Without dialogue the facilitator could unwittingly dominate the discussion and make decisions on behalf of deferential, overwhelmed family members that are contrary to the family’s wishes and adverse to their long-term goals. The key is reaching out to family members to make sure their questions are solicited and answered, and then striking a balance between serving as a needed source for legal information while not driving the discussion to reach a conclusion preferred by the facilitator, but not necessarily the family.
“The worst problem you never heard of ” is a problem that alternative dispute resolution can play a large role in addressing. Though legislative reforms are necessary and some contentious partition actions are inevitable, many of the challenges associated with heirs’ property can be met by attorneys pro-actively utilizing alternative dispute resolution techniques. Properly employed, these techniques bring together distant family members, smooth out familial acrimony, explain complicated legal options, and allow for ancestral land to remain in and to provide benefits to families.
Source: The Peacemaker