This is Part II of our series on heirs’ property. See Part I, “Preventing ‘tangled titles’ and subsequent blight in Philadelphia” here.
What happens to a property after its owner has passed on?
In many cases, if the owner doesn’t leave a will, the answer may be unclear, leaving the property with a clouded title and an uncertain path forward. Particularly if an owner has many descendants, some of whom may have moved out of state, responsibility and ownership can become “tangled” over time, and properties can easily become vacant or blighted.
In rural South Carolina, many families are living on properties that have been passed down for generations without a will, so the families, mostly poor residents, do not retain a clean title to their homes.
That’s where the Center for Heirs’ Property Preservation comes in. They provide legal education and aid to property owners so that they can gain a clean title of their ancestral homes today and leave a will so that the title does not become clouded in the future.
We were lucky enough to ask Tish Lynn, Resource Development Coordinator at the Center for Heirs’ Property Preservation, a few questions about the Center’s work. Here are her responses:
What is heirs’ property?
Heirs’ property (HP) is land that has been passed down without a will and is therefore owned, in common, by the family heirs and there is no clear title to the land. In the Lowcountry of South Carolina, most of this land is rural and owned by African American families who either purchased or were deeded land following Emancipation.
Heirs’ property exists across the U.S. The statistic reported is that there were 15 million HP acres in the U.S. at the turn of the 19th century. Today, there is little more than 1 million. Heirs’ property is not a racial issue, it is a socio-economic issue. Whites, Blacks, Hispanics and Native Americans all own heirs’ property. The more commonly shared characteristics are that they lack knowledge of the law and access to legal help.
Owning land in this way is an unstable and risky way to own land, though, because any heir can force a sale of the entire property in the courts at any time. Or – an heir can sell his/her percentage of ownership to someone outside of the family (e.g. a developer) and they can do the same thing and the land is then lost to the family.
The only way to clear title to HP is legally, through the courts. Many of these landowners are low-wealth, historically under-served families who cannot afford the high cost of a private attorney to do this work.
That’s why the Center for Heirs’ Property Preservation was established in 2005 to provide the legal education and direct legal services to protect HP so these families could keep their family land.
In 2013, the Center was funded to launch a “Sustainable Forestry and African American Land Retention” pilot project to work with 40 HP and non-HP families, who owned a minimum of 10 forested acres to develop and implement sustainable forest management practices and benefit from USDA programs available to them to increase the value and income of their forestland.
The dual work is proving to be one pathway out of rural poverty for these families in South Carolina and is changing their lives and futures.
What challenges do heirs’ properties present, to local governments, neighbors, and to the descendants of property owners?
To local governments: We get referrals all the time from local government agencies that have funds to assist property owners to fix-up their homes. When heirs’ property (HP) owners apply for financial assistance, they don’t qualify because they own HP. Heirs’ property owners are also unable to obtain a mortgage or loan.
Often, this is the first time that they learn that they don’t “own” their land – that it is heirs’ property.
To neighbors: HP owners don’t want to invest much money in a home or in the property when they don’t own it and might lose it at any time, so these properties can be run-down and badly kept which reduces neighboring property values and can frustrate neighbors. In urban environments, these properties are sometimes abandoned and may be condemned.
To the descendants: The biggest challenge to the descendants is the fact that they could lose their land at any time because of the way it was left to them. There are a lot of myths and misunderstandings around HP.
One of the most common myths is that the responsible family member, who has been paying the taxes on the land, therefore owns it. There is no question that they have kept the land in the family but they don’t own any more of the land because they have done that.
There is a mathematical formula used to determine the percentages owned by each family member, according to where they fall in the family tree and that doesn’t change, unless they buy out another heir’s percentage.
Another challenge is the lack of knowledge about the rights, responsibilities and risks of owning HP and how to resolve it. Disagreement within the family about what to do with the land can arise, which can lead to hard feelings within the family. Some want to keep it. Some want to sell it. Some want to leave everything as it is and not do anything. It is often hard work to resolve HP issues and many are reluctant to deal with it.
Also, there may be heirs that the family doesn’t know. They live in other states and might never have set foot on the property and don’t care about it. It is very difficult to bring all of these family members together to reach family agreement about what to do with the land.
There are also instances when some family members benefit from the land financially (from cutting trees, etc.) and don’t share that income with the other heirs, which leads to resentment. Family agreement is required to resolve HP so the mediation process to reach family agreement is key to the work we do.
How can heirs’ property lead to increased vacancy and abandonment?
HP can lead to vacancy and abandonment when the family member who has been living on the property passes away and the other family members don’t want to assume responsibility for it. Many members of African American families in the south went north in the Northern Migration in the forties and fifties and did not return. They have no connection to the land and know little about its history. When the older generation passes, there is no one to take care of it which can lead to vacant and abandoned properties.
What can local government or nonprofit leaders do to help prevent clouded titles?
The way to prevent clouded titles is education. People have to understand the importance of writing Wills, estate planning and probating estates in the courts within the time required by the law of each state. A Will is just a piece of paper until/unless it is probated.
In South Carolina that’s 10 years from the passing of an individual. We have had well-meaning family members come in for legal advice and they are clutching 20-year-old Wills as proof of property ownership when, of course, it isn’t.
However, the first step is building trust so that these families will not be afraid to come forward to learn about their land ownership. Local government agencies and non-profit leaders should work with the pastors and civic leaders in these communities to build that trust, which can take time. Then affordable legal help must be provided.
Sadly, many HP landowners who sought help with their land in the past lost it. We call it “legalized theft.” They would come forward and then be told to sign papers, which they didn’t understand, and that would be that. The land would be gone. Every family we have worked with has a story of land lost and the fear of that still persists.