Preventing land loss among rural African-Americans
Preventing land loss among rural African-Americans
Tuesday, April 14th, 2009
By Rob Schofield
Why are vested interests blocking legal reforms that could help stop the bleeding?
Quick take: Last week at the General Assembly, members of a House committee considered a bill advanced by advocates for rural African American landowners that would have improved the fairness of legal proceedings that often result in the taking of family farms. Unfortunately, as in the proceedings in question, the letter of the law and "efficiency" seem to be trumping actual justice and human decency.
Here's an important issue that you probably haven't heard or thought much about lately: the loss of land by rural African Americans of modest income. For decades, the hemorrhaging of farmland has been a plague upon Black families. Here's how the folks at a North Carolina nonprofit known as the Land Loss Prevention Project describe one of the principal causes of this problem:
"Like many poor people, rural African American farmers often failed to prepare wills before they died. In the absence of a proper will, state laws governed how the farmers' land was passed on to their heirs upon their death. What this usually meant was that interests in the land were passed on to a large number of people who were classified as "heirs" in the eyes of the courts, and when those heirs died themselves, their ownership interest in the land was passed on to their heirs. The result of this process is that in a relatively short period of time, ownership of small pieces of property have been split amongst hundreds (and sometimes even thousands) of people.
As it stands now, any co-owner can seek the division or sale of a piece of property without regard to how much on an interest they own. What this means is that an individual who has a marginal ownership interest in a small portion of a piece of land, and who does not pay any taxes or contribute to maintaining the land in any way, can force the co-owners who are actually using the land to sell their portion as well."
"Partition sales"
The legal process by which some heirs can force the sale of the property in such a situation is referred to as a "partition" and the resulting sale of the land is known as a "partition sale." Occasionally, partitions can provide a service in cleaning up title to a piece of property. As the description above makes clear, however, there have been hundreds of situations in which the real world impact of the partition and subsequent sale is to end a family's historic ownership and occupation of land on which they had enjoyed a claim for a century or more.
Such situations can be particularly pernicious when the real driving force behind the partition sale is developer or a lawyer (or a combination thereof) who is the main beneficiary of the whole process. In the most egregious situations, the land is actually scooped up at sale by the very same lawyer who brokered the whole transaction to begin with. In smaller rural counties in which African-Americans have always been relegated to the margins of society, one can only imagine the emotions of alienation for the family displaced from their birthright as it's snapped up by a local bigwig. Such situations conjure up disturbing images from reconstruction and the Jim Crow era.
Finding solutions
As a small, partial solution to the problem, advocates have proposed a package of bills this year at the General Assembly that would address some of the worst conflicts of interest and other major problems in the way partition sales are handled.
One of these bills was heard for a few minutes in a House Committee last week. It deals with the situation in which the same attorney who represents one or more of the parties in the original partition action is subsequently appointed by the local clerk of court as the "commissioner" in the proceeding.
The commissioner is supposed to be an unbiased, impartial person who oversees the actual land sale. As proponents of the legislation explained in the committee hearing last week, however, it's pretty darned difficult to explain to someone that's being displaced from their family plot how the same person who brought the action against them to begin with can act in their best interests when it's time to sell the land.
At best, such a situation presents the appearance of an enormous conflict of interest. At worst, it reeks of the worst kind of an "inside job" - an old-fashioned fix in which simple people of modest means are run over by the local "powers-that-be" in their community.
Conflicts of interest
The proposed legislation make it explicitly clear that attorneys who represent any party in the partition would not be allowed to serve as a commissioner except when all parties (including the landholder) affirmatively agree to allow it.
Unfortunately, although such a solution seems simple and straightforward enough, it has raised the ire of some real estate lawyers who practice in this area. Last week in committee, these attorneys argued that such a change would be "impractical." They contended that there are so few lawyers in rural counties that it would be hard to scare up a completely untainted commissioner. What they failed to acknowledge, is that there is no requirement in the law that the commissioner be an attorney.
One of the most surprising moments in the meeting occurred when the House Minority Leader, Rep. Paul Stam, showed up at the meeting to address the matter (Stam is not a member of the committee and it is extremely unusual for a non-member to attend and ask to speak on their own at such a meeting.)
Acting as a kind of self-appointed lobbyist and expert, Stam forcefully denounced the bill, echoing the positions of the other real estate lawyers and arguing that such a requirement would make it extremely difficult to effect such partitions.
He then went on to explain that in his law practice, he had "handled 50 partitions." That this fact, in combination with his own active and vociferous participation in the debate over the bill, might itself have raised a few eyebrows did not seem to occur to the representative.
At the end of the meeting, the bill was not even voted on and was instead sent to an ad hoc subcommittee, where it faces, at best, an extremely uncertain future.
Going forward
In the end, it seems, the rough treatment meted out to this one, modest little bill is emblematic of the whole subject of land loss by rural African-Americans. Not only are the powers-that-be indifferent to the reality facing these families, they're remarkably tin-eared when it comes to the perception of how the process (in the courts and the legislature) works.
Let's hope that at some point, lawmakers come to the realization that, sometimes, there's more to justice than mere "efficiency" in the application of an old law and whether their individual consciences are clear.