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Understanding heirs’ property and its impact on farmers



Imagine that you live on a 200-acre farm. It’s a productive place, filled with open fields and healthy forests. Perhaps there’s a creek that meanders along the eastern boundary. Maybe your cattle graze the back pastures while crops grow by the road.

Then imagine that your family has been farming here for decades. Your parents and grandparents — along with your aunts, uncles, and cousins — have all tended this land. This place is part of your identity. It’s your home.

Now picture losing that beloved homeland. You haven’t decided to sell the place, and you’ve done nothing to forfeit ownership. To be sure, you’ve paid the property taxes on time and kept the land in good health. But you have seen in your local newspaper that your farm, your home, is being put up for public auction. You’re confused and upset, and you don’t have the cash on hand to outbid developers with deep pockets. So the farm sells. You receive a measly sum of money for your stake in the place, but that’s cold comfort. Your family’s land and legacy are gone.

The above scenario sounds like a nightmare, and it is. But for many owners of “heirs’ property,” this nightmare can quickly become reality.

Heirs’ property is, according to the U.S. Department of Agriculture, “family-owned land that is jointly owned by descendants of a deceased person whose estate did not clear probate.” In other words, when the current owner of a property dies without a valid will, the property’s ownership flows equally to that person’s heirs. These individuals then become tenants in common. If the heirs don’t settle the estate and title issues, the land will continue to be owned in an heirs’ property format, passing down from one generation to the next in an informal status that could lead to dozens of co-owners.

While co-owning land with other family members isn’t inherently a problem, there are some distinct challenges that arise with heirs’ property. Until recently — and in some cases still today — it has been difficult for heirs’ property owners to qualify for disaster assistance in the wake of a major storm or use their property as collateral for a loan. For heirs’ property farmers, it has been challenging, and at points even impossible, to apply for federal conservation programs and financial assistance. These issues arise because of the lack of clear title, and they are indeed very serious.

But the most egregious problem associated with heirs’ property stems from countless not-so-hypothetical situations like those described at the beginning of this article. At any given time, heirs’ property owners can be subjected to “forced partition sales.” These sales occur when one co-tenant in an heirs’ property arrangement decides they want to sell the property. This co-tenant could be a distant cousin who lives a thousand miles away from the land. Perhaps they’ve never seen the property, much less farmed it. Or the sale-focused co-tenant could be a developer or land speculator who bought out one heirs’ stake and became an equal co-owner. After petitioning to sell the property — or even just threatening to do so — they may try to buy the entire parcel themselves and claim singular ownership. Once a request to sell has been made, the land is often sold on short notice at public auction.

Dãnia Davy of the Federation of Southern Cooperatives shares that, compared to open market sales, land sold at public auction typically sells “for pennies on the dollar,” which harms family members.

These forced partition sales are, in many states, perfectly legal. But that doesn’t mean they’re right. On the contrary, people view them as predatory.

“Folks of all races have been impacted by heirs’ property exploitation. This is not an isolated incident. We need policy to address this issue.” — Dãnia Davy, Director of Land Retention and Advocacy at the Federation of Southern Cooperatives/Land Assistance Fund

Heirs’ property exploitation can happen to anyone, but it has especially affected Black farmers in the South. Carrie Martin of the Black Family Land Trust — a nonprofit conservation organization that operates in Virginia and North Carolina — explains that Black-owned land can end up in an heirs’ property ownership structure for several reasons. In the past and present, people of color haven’t had equitable access to legal services to create clear, legitimate wills. Further, estate planning can be expensive, making it difficult for many farm families to afford. And in some instances, people may deliberately pass a farm down via heirs’ property, believing that tenancy in common protects the land when, in reality, it can open the door for exploitation.

Once land becomes heirs’ property, it’s tough to resolve title issues. Doing so requires tracking down every co-owner, securing unanimous agreement among all parties, and acting with careful coordination. It may require buying out some family members. These time-intensive efforts can prove costly.

The threat, then, of dispossession constantly looms over heirs’ property landowners and farmers. In fact, the USDA has called heirs’ property “the leading cause of Black involuntary land loss,” and a prominent property law attorney deems it “the worst problem you’ve never heard of.” Land loss via heirs’ property has been a major contributing factor to the precipitous decline of Black farmers in America over the last century. Many estimates suggest that roughly a third of Black-owned land in the South is still held in this way.

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The challenges for heirs’ property owners are certainly daunting. But good work is being done to address this issue. For example, the federal government has created programs to help heirs’ property owners resolve title issues and better access conservation programs. Further, many states have passed the Uniform Partition of Heirs’ Property Act, a piece of legislation that protects heirs’ property owners and secures their rights. “Folks of all races have been impacted by heirs’ property exploitation,” Davy explains. “This is not an isolated incident. We need policy to address this issue. I think [the UPHPA] is a great first step in terms of larger reform.”

Government leadership on this issue is critical for ensuring widespread progress. Yet the most inspiring efforts to address heirs’ property may stem from leaders like Davy and Martin, who work directly with heirs’ property owners to address familial title issues and solidify land tenure. Martin explains that the Black Family Land Trust plans to directly help 30 to 35 families in North Carolina and Virginia resolve heirs’ property ownership this year while also enabling them to better care for their land.

“Many Black and brown communities have a deep ancestral tie to the land,” she says. “We want to help families continue that tradition of land ownership and stewardship, to help them provide wealth and opportunity to the next generation.”

“We want to help families continue that tradition of land ownership and stewardship, to help them provide wealth and opportunity to the next generation.” — Carrie Martin, North Carolina State Coordinator for the Black Family Land Trust

Davy and the Federation of Southern Cooperatives share a similar vision, and they achieve it in various ways. Beyond helping individual families directly, the Federation hosts a podcast that discusses heirs’ property, farming, Black history, and other topics. They help farmers embrace practices like agroforestry and adopt business plans for their operations. The Federation also hosts an annual conference, where they provide tools for 100 heirs’ property owners to clear title for their land. All these efforts are vital.

Heirs’ property owners have long faced injustice in America, and they still face it today. The horrors experienced by many families are disturbing and infuriating. But we can find authentic hope for progress in the good work that’s being done. And with that hope in mind, we can cultivate the courage needed to keep moving forward.

Brooks Lamb is from the small, rural community of Holt’s Corner, Tennessee, and currently lives in Louisville, Kentucky. He recently completed his graduate studies at Yale School of the Environment and now works as the Program Associate & Special Assistant to the President at American Farmland Trust.

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