Preserving Heirs_ Property

Tarboro hosts clinic on wills for social justice Haroon Saqib TARBORO — In 1910, African Americans owned 15 million acres of land in the United States but, by 1995, they retained only 2 million acres. To help staunch that loss, the Southern Coalition for Social Justice and the Edgecombe County Cooperative Extension Service hosted a free clinic on wills and other end-of-life documents in Tarboro last weekend. A lack of sound legal advice and well-drafted wills in low-wealth, African-American communities has contributed to this dramatic loss. “The land ownership gap between African Americans and other communities is considered a cause of the wealth gap and the political power gap in the United States,” says Becky Jaffe, an attorney at the Southern Coalition for Social Justice. Wills help families plan to pass their property from one generation to the next, which increases the likelihood that land will remain in the family. “I never had a will drafted before, and my wife said that we should attend because it was important for our personal property,” said Murray Morning, one of the 13 Edgecombe County residents who participated in the free weekend-long clinic. A team of lawyers from the Southern Coalition for Social Justice and law students from universities around North Carolina drafted more than 40 documents for the attendees. “They were very professional and broke everything down step-by-step without a rush. Some of the nicest people I ever talked to,” added Morning. Clients drafted wills to outline how they wanted to distribute their property for the future. “My wife and I own two acres of property here, and the will was important for me to say what I wanted to do with my property,” said Bobby Yates, a bee farmer in Edgecombe County. “The staff did a good job of helping me understand why the will was important and answered any of my questions about my property.” Clients also had the option of obtaining three other documents: a power of attorney, living will, and healthcare power of attorney. Those documents enable clients to manage their finances and healthcare decisions in the event of a serious illness. “This really takes the hardship off of your spouse and children to try to make these decisions for you when you are unable to speak for yourself,” said Morning. Over the past few years, the Southern Coalition for Social Justice and the Cooperative Extension Service have been helping Edgecombe County residents retain and beneficially manage land. They hope to expand these services further by hosting more wills clinics in the future. Yates added, “This takes a load off of me and I would recommend this to everyone.”

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“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 cases. 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.

Heir's Property Workshop Set for Oct. 10 BY FLORENCE GILKESON: SENIOR WRITER A free workshop for heirs' property owners will be held at 10 a.m. Oct. 10 at the Senior Enrichment Center under sponsorship of the Moore County Department of Planning and Community Development. Heirs' property is land owned by two or more people who have inherited rather than purchased their shares of the property. The problem surfaces most often in cases where people have inherited property but cannot locate the deeds for the traditional transfer of ownership. Tim Emmert, community development planner, cites the example of a situation in which federal housing monies cannot be easily applied to heirs' properties without lengthy, sometimes fruitless, searches to track down family members and secure signatures on appropriate documents. He has seen this problem in cases where a property owner is eligible for rehabilitation assistance for a house but cannot prove legal ownership. Without proof of ownership, funds allocated through a Community Development Block Grant cannot be used to rehabilitate the house. advertisement At the workshop, attorneys from the Southern Coalition for Social Justice and the Land Loss Prevention Project will review the risks of owning heirs' property and some ways for property owners to protect their land. Those attending will be invited to ask questions about property ownership, wills and other related matters. Reservations for the workshop are not required, but the sponsors ask that interested persons call the Planning Department at 947-5010 prior to the workshop. There are no plans to serve refreshments, but advance notice will help the department to complete arrangements for the workshop to begin at 10 a.m. and end by noon. The Southern Coalition for Social Justice (SCSJ) promotes justice by empowering minority and low income communities to defend and advance their political, social and economic rights. SCSJ uses the combined skills of lawyers, social scientists, community organizers and media experts to help under-represented people to develop strategies to achieve their visions for themselves and their communities, incorporating an international human rights perspective and linking their efforts to broader processes of political, legal, social and economic change in the South. The Land Loss Prevention Project was founded in 1982 by the North Carolina Association of Black Lawyers to curtail epidemic losses of land owned by blacks in North Carolina. It was incorporated in 1983. The organization broadened its mission in 1993 to provide legal support and assistance to all financially distressed and limited resource farmers and landowners in North Carolina. The Senior Enrichment Center is on U.S. 15-501 about two miles north of the Pinehurst Traffic Circle.

SCSJ advocated forcefully at the North Carolina legislature in the summer of 2009 for legislative reforms to improve the ability of families that hold heirs property to retain control of their land. We succeeded in improving procedural fairness in partition sales by increasing the time for respondents to respond to a petition for partition, assigning representatives to protect the interests of unknown or unavailable heirs, and underlining the availability of mediation in partition actions.

Listen to the full podcast at: http://thestory.org/archive/the_story_803_Thinking_Big.mp3/view Billy Freeman's segment begins at 34 minutes into the program. Near Wilmington, N.C., a legal conundrum is pending over who owns a particular piece of beach. The case goes back 150 years in history, and it involves land that was originally purchased by a former slave. The property was passed down through the Freeman family, without a clear paper trail. Now there's a development company that claims it has bought up some of the interests. Billy Freeman joins Dick to talk about the history of the beach, and how they plan to sort out the ownership issues.

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