Volume 28

Acres of Distrust: Heirs Property, the Law’s Role in Sowing Suspicion Among Americans and How Lawyers Can Help Curb Black Land Loss

by Will Breland

In the last century, Black landownership has declined by roughly 90 percent. One agricultural attorney remarked of the phenomenon, “I think the threat to Black-owned land is one of the biggest social issues of our time.” The passing observer might hypothesize that the hemorrhaging of Black lands occurred in the distant past because of Jim Crow laws or the Great Migration. However, this notion is mostly false. Rather, the tremendous loss of Black lands occurred in the latter half of the twentieth century and into the current decade. Many such losses can be attributed to the prevalence of “heirs property,” or property defined by the existence of a tenancy-in-common form of ownership as a result of intestacy, and speculators, developers, and legal professionals’ exploitation of such landowners’ tenuous form of ownership through partition sales. Heirs property ownership is particularly widespread in the rural South and in predominately African American communities.

It is the position of this Article that such exploitation has caused many, particularly in the African American community, to view legal professionals with distrust, particularly regarding property matters. In order to illustrate the connection between Black landownership and its past interactions with the legal system, this Article outlines the social and legal history of Black landownership. While scholars debate the impact of mistrust in the legal system and its practitioners on estate planning, this Article contends that past negative interactions with the legal system inhibit the utilization of estate planning services. As a result, this perpetuates a cycle of inheritance through intestacy on a massive scale. Finally, this Article provides proposed solutions for legal professionals to consider when dealing with such legal issues. In particular, courts must adhere to the majority of states’ preferences for partitions in kind rather than demonstrating an over-eagerness in ordering partition sales. As such, courts should consider intangible property values when making partition determinations, rather than exclusively considering economic values. In order to accomplish this, the development of culturally competent attorneys and judges is paramount. Therefore, this Article argues that law schools and continuing legal education programs must emphasize cultural competence.

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