Beginning in the 1950s state courts began overriding the stated preference for partition in kind, instead favoring partition by sale. Although more convenient for courts, this had the effect of allowing one fractional owner, often a distant family member without a connection to the land, to force a sale against the wishes of all other owners. This has led to a loss of land ownership, a key way to build familial wealth, especially impacting poor communities and communities of color.
Uniform Partition of Heirs Property Act In 2010, the
Uniform Law Commission drafted a model Uniform Partition of Heirs Property Act. As of 2024, the Uniform Partition of Heirs Property Act has been enacted in 23 states and territories and introduced in an additional 6 states. Among other things, it requires improved procedures for serving notice on heirs and determining fair market value if the co-owners of the property are unable to agree. The purpose of the Act is to prevent partition by sale to the fullest extent possible while there are some cotenants who still wish to live on the land while other cotenants may wish to sell the property. As stated in the UPHPA, heirs property is defined as: • "(5) real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: • (A) there is no agreement in a record binding all the cotenants which governs the partition of the property • (B) one or more of the cotenants acquired title from a relative, whether living or deceased; and • (C) Any of the following applies • (i) 20 percent or more of the interests are held by cotenants who are relatives • (ii) 20 percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or • (iii) 20 percent or more of the cotenants are relatives"
2018 Farm Bill The Agricultural Improvement Act of 2018 (aka the 2018 Farm Bill) was signed into law on December 20, 2018. This bill required the USDA's Farm Service Agency to develop rules allowing heirs' property owners to obtain a farm and tract number, even with cloudy property title. These requirements include: • a court order which verifies the land as heirs property, • a certificate from the local deed recorder stating the recorded owner of the property is deceased and at least one heir is attempting to have the land retitled and placed in the name of the rightful heir, • a tenancy-in-common agreement which was approved by the majority of ownership interests in the property which gives a particular owner the right to manage the property as a farm or ranch, • tax returns for the farm submitted by the farm operator, self-certification from the farmer stating they have control over the land to operate a farm, • or any documentation deemed appropriate by the Secretary. Additionally, the Farm Bill established the Heirs' Property Relending Program with the purpose of solving land ownership and succession issues on agricultural land. The process for participating in the program is as follows: • The USDA will provide loans to eligible lenders, like cooperative, credit unions, and nonprofit organizations • Heirs will apply directly to the lenders, and upon receipt of the loan, will repay the loan at the interest rates set by the lenders • Heirs can use the loans to resolve any outstanding issues on the title to the property by financing or consolidating the property • Heirs obtain clear legal title after resolving outstanding issues related to the title which then allows for heirs to apply for USDA programs as well as other US government resources like FEMA assistance. Traditionally, FEMA accepts property deeds or titles, mortgage payment booklets, property tax receipts, property tax bill, or real property structure insurance. Now, FEMA will also accept a Will or Affidavit or heirship along with the death certificate of the descendant, which names the person seeking assistance as the heir to the property. Documentation can be dated up to a year before the disaster or within 18 months of assistance following a disaster In Black-majority counties impacted by natural disasters, research has demonstrated more than a third of applicants have been denied due to having cloudy title issues on heirs property they have inherited. The legal costs involved in preparing an estate plan may also deter some families from creating one. According to the
United States Department of Agriculture, since 1910, the heir property system has been responsible for African American landowners losing 80% of the farming land owned by previous generations. In 1910, 16 million acres were operated by African American farmers, or 14% of farms. In 2023, under 3 million acres are operated by African American farmers and 1.5% of farms. Within the
Southern United States, about a third of the land owned by African Americans, amounting to about 3.5 million acres, is held in the heirs property system. ==References==