Understanding Hiers’ Property

Between the Civil War and 1920, African Americans in the United States acquired more than 20 million acres of property, a remarkable achievement in a society that was hostile to African American land ownership. These early purchasers made effective contributions to the political and economic life of the country and left a lasting impact for future generations. This land has come to represent not only a potentially valuable item but also a crucial connection to history, family, and culture for those who are otherwise financially disadvantaged.

In some urban and rural areas, some low-income African-American families still have sizable land holdings that have been passed down through the generations, although the vast majority of this land has been lost during the past 90 years. The reasons for this loss include unethical behavior on the part of attorneys, violence used to evict black landowners, and widespread prejudice on the part of the USDA toward black farmers. A person’s inability to use the legal system because of their financial status, prejudice, or a valid mistrust of it is another important aspect.

Due to a lack of access to the legal system, property transfers have occurred generation after generation without the use of wills or estate plans. These tools quickly lead to an unsustainable multiple-owner situation for the property. If the owner passed away intestate (that is, without a will), the five children would each receive an undivided 1/5 interest as “tenants in common” (the legal term for heirs’ property). “Undivided” means that each person has the right to use and occupy the full property. If each of the original 5 heirs has 5 descendants, there will be 25 owners when they pass away. As the generations pass, there may be hundreds of owners. That’s heirs’ property.

What is Hiers’ Property?

Heirs’ property is a type of tenancy in common in which more than one person owns a piece of real estate. This usually happens when someone dies without a will. This type of tenancy does not have rights for the person who dies and does not have the same responsibility to take care of the property. Cotenants have the same rights to use and own the land, but they do not have the same obligations to keep it up. This lack of a clear title and shared ownership makes it hard for each cotenant to sell, fix, improve, or use the property as collateral.

The Problem with Hiers’ Property

The problem with heirs’ property is that when there is only fractional ownership, it significantly raises the likelihood 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 owing to tax delinquency. The fact that many of the rules governing these legal processes are fundamentally unfair, particularly those governing notice and the assessment of the parties’ interests, makes the issue worse. For instance, the partition rules of every state permit any fractional owner, no matter how little their share is or how recently they acquired it, to ask a court for authorization to force the auction sale of the entire property against the will of all other owners.

The bulk of low-income households with real estate holdings do not have the resources to create a productive ownership structure with numerous successors. It seems doubtful that these families will be able to develop practical plans for exploiting or maintaining their real estate assets or stabilizing ownership in the face of threats like divorce and tax default without structure. These families frequently experience internal conflict, which can thwart efforts to encourage stable ownership and result in a forced split sale.

Public Knowledge is Important

It is crucial that the public is aware of the issue because there are significant myths about heirs’ property that are widespread in low-income communities, such as the notion that tenancy-in-common is the most secure form of ownership, that the family member who resides on the property and pays the taxes has a superior form of ownership, or that one owner cannot force a sale without the consent of the other owners.

Despite these concerns, researchers have found that heirs’ property disproportionately leads to land loss among African-American farmers due to the nature of the property. The USDA acknowledged this in its most recent Notice of Proposed Rulemaking on Heirs Property. Minority groups are disproportionately impacted by the problem, particularly in the South, where landowners have frequently been forcibly removed from their holdings by fraud, abuse of the legal system, or even violent aggression.

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