Racial Justice Push Creates Momentum to Protect Black-Owned Land

This story originally appeared in Stateline. 

In May, three sisters in Chicago got a surprise phone call: They owned 35 acres in Mississippi with a stand of mature timber worth more than $40,000.

“They'd never been to Louisville, Mississippi, so they had no idea they owned property,” recalled Frank Taylor, leader of the Winston County Self Help Cooperative in Mississippi, who called the sisters.

Every year, the cooperative retrieves the county's delinquent tax rolls and uses public records, local knowledge and a couple hundred phone calls to alert people who risk losing their land.

The effort seeks to stem the loss of property among rural landowners and help them maintain their homestead and legacy. Tax and partition sales, in which courts force the sale of an entire property over ownership disputes, are among the legal actions that have precipitated the loss of Black-owned land in Mississippi and across the country.

"In the state of Mississippi, if you don't pay your property taxes in three years, then the person who purchased it first through the tax sale has the right to get a tax deed," Taylor said. "It doesn't guarantee ownership, but you have an interest in the property."

Many of the landowners that the group contacts inherited heirs' property, a form of ownership created when people die without a will and their heirs share a claim to the estate. Many are Black families who in the 1800s and early 1900s might have had neither the means nor, often, the freedom to secure land titles or draw up wills. This year, Mississippi and three other states passed laws that provide protections for people who inherit such property.  

As more states follow, lawyers and advocates say the coronavirus pandemic, coupled with federal provisions in the 2018 farm bill, have sparked even greater interest in succession planning among rural landowners.

The changes are happening against the backdrop of a broader national awakening to racial injustice, even in agricultural spaces. Black-owned land with active farm operations has decreased roughly 85% over the past century. About 95% of farmers are White.

Heirs’ property is vulnerable to being snatched up without families knowing what they own, or it can become carved up among relatives and then lost entirely if just one person sells their share. As a result, heirs’ property contributes to the racial wealth gap and is among the strongest examples of historic and structural racism.

Agricultural groups rarely take social justice stances. But following the viral video showing the killing of George Floyd by a White police officer in Minneapolis, the American Farm Bureau Federation, National Farmers Union, National Association of State Departments of Agriculture and others released statements denouncing racism.

The National Farmers Union encouraged its members to educate themselves on Black land loss and systemic racism and posted a Juneteenth message that detailed the "broken promise of '40 acres and a mule.'"

"When they make those statements, yes we're interested, but I think we have a collective curiosity as to what's next," said Dewayne Goldmon, executive director of the National Black Growers Council, a Washington, D.C.-based advocacy organization that represents multigenerational row-crop farmers with commercial operations.

As new state and federal laws begin to equip heirs’ property owners with tools to retain their land, some advocates are expanding their work to fill remaining legal gaps. 

The pandemic virtually eliminated Winston County Self Help Cooperative officials’ in-person meetings with Mississippi farmers and landowners on topics such as farm management, conservation practices and participation in federal programs, freeing up the cooperative to expand its delinquent tax program. Webinars in June and July trained people in another 20 Mississippi counties on how to replicate its work, according to Taylor.

Estate Planning

The heirs’ property problem stems in large part from long-standing racial and economic disparities when it comes to writing wills.

A trio of economists in the United States, Switzerland and the United Kingdom dug into unequal bequests to descendants, using data collected between 1995 and 2000 by University of Michigan's Health and Retirement Study, which surveyed a nationally representative sample of more than 26,000 Americans ages 50 and older.

Among all respondents, 56.9% had a will, the researchers say in their working paper issued by the National Bureau of Economic Research. But the percentage with wills declined with education, from nearly 65.7% of respondents with at least a college education to 58.9% among those with a high school education and 47.13% among respondents with no high school degree.

The study found significant racial and ethnic disparities in will-making. Among respondents with a college education and above, 72% of Whites, 32.3% of Blacks and 31.7% of Hispanics had a will.

Black people historically didn't consult attorneys because there would have been few Black lawyers in the 1800s, especially in rural counties. And it would have been bad for business for White lawyers to take on Black clients during the Jim Crow era.  

"I think that had a powerful impact on succeeding generations even when lawyers became available," said Thomas Mitchell, a law professor at Texas A&M University. "You had no tradition in your family. You didn’t necessarily think, 'We didn’t do this because of the historic racism,' you just think, 'Oh, we never did this.'”

Heirs' Property 

Barry Wilson's great-grandfather in Alabama died in 1938 without a will, laying the groundwork for dozens of heirs to lay claim to his land, a timber-rich property that's in the path of development.

"I personally, from Day One, wanted the land back so everyone who's in line can — and should — benefit," Wilson said.

More than a century ago, Wilson’s great-grandfather bought about 40 acres of land in Auburn, Alabama, for his wife and young family. The property remained in his name as he remarried, had more children and saw his descendants scatter to cities such as Gary, Indiana, and Chicago.

They were among millions of rural Black people in the Deep South who migrated to urban centers outside the region to escape virulent racism and find better economic opportunities.

But what followed involves allegations of a relative deceiving other heirs to sign their shares over to him while maintaining that the property was still owned together. Wilson, who lives in Atlanta, is but one heir engaged in a complex, decades-long legal battle for the family’s land in Lee County, Alabama.

Among heirs’ property owners, any one heir or co-owner can sell their share of land. A real estate developer or other outsider can acquire that share and become a co-owner.

And any co-owner can force a sale of the entire property. Buyers often don't pay market value. As a result, a family loses its inherited wealth.

Wilson said local developers have purchased shares of the family land from two heirs. They then submitted a court filing to purchase the entire estate. A circuit court has approved a payoff from the developers to one division of the family for $1.2 million. Wilson said the property is worth up to $15 million.

Family infighting is common to heirs’ property issues. Disputes arise when families don’t have the records to show inheritance or land ownership.

Breaking up land into smaller and smaller parcels is a disservice to the land and to families, said Ebonie Alexander, executive director of the Black Family Land Trust, a Durham, North Carolina-based regional land trust that helps protect land assets for Black and other historically underserved populations and make that land generate wealth.

"If we continue to partition the land, with every generation we will have parcels of land that have very little agricultural value, very little residential value and probably little commercial value because they'll be so small," Alexander said. "Almost postage-sized pieces of property." 

The three sisters in Chicago had ignored unfamiliar mailings about their inherited property in Louisville, Mississippi.

Their father had died in 2010. When their mother died in 2016, the property taxes were no longer paid.

Two investors had paid taxes on the land in 2017 and 2018, Taylor said. The first investor would have gotten a tax deed on the property this year if the sisters had not paid the taxes for a third year.

Taylor had tried to reach the family several times, but his calls were ignored.

"After the fifth call, she said, 'Well, I know this must not be a telemarketer,’ and she answered the phone," Taylor said.

The sisters plan to visit the property when they feel safe traveling. Taylor said the cooperative will enroll them in a timber management program. 

Building Momentum 

The 2018 farm bill included money to create a new program to help heirs’ property owners. The U.S. Department of Agriculture Farm Service Agency program lends money to eligible intermediaries — such as cooperatives, credit unions and nonprofits — for projects that assist heirs in resolving ownership and succession issues. The program received $5 million last year, but the agency still must write its rules and regulations before the money is released.

The pandemic’s disproportionate death toll among rural people of color has been a huge blow to families and communities struggling with heirs’ property issues, said Lorette Picciano, executive director of the Rural Coalition, a national nonprofit based in Washington, D.C., that supports rural and indigenous communities through public policy, technical assistance, research and education. The group was among the leading advocates for the heirs’ property provisions in the farm bill.

Among 12 rural, urban and metropolitan counties in Georgia, Alabama and North Carolina, heirs’ property accounts for 55,325 acres valued at $668.9 million, according to several studies conducted between 2009 and 2018.

Another study in eight southeastern Kentucky counties found 101,356 heirs’ property acres valued at $60,325,719. The data was obtained for the 2017-2018 tax years.

"We just know from watching all these families, you're frozen in a place where you can't do anything," Picciano said. "Even with succession planning, it's going to be very, very difficult. I think families are thinking about this more and wanting to do it, but we are still lacking those services."

Another farm bill provision helps heirs’ property owners participate in USDA farm programs by allowing them to provide alternative forms of documentation even if they cannot prove they own their land. Acceptable documentation depends on state laws. It may include several years of tax returns from the farm operator or a court order showing that land qualifies as heirs’ property. But it's unclear how many farmers are using the provision or the extent to which local USDA offices understand it, Picciano said.

The farm bill provisions are only fully effective in states that have passed the Uniform Partition of Heirs Property Act. Without that measure, nothing prevents co-tenants from selling their shares to outsiders. But in states that have enacted it, the law gives co-owners the opportunity to buy out heirs who want to sell their shares. Open market sales rather than auctions are preferred to ensure a higher sale price.

The 2018 farm bill has had the collateral benefit of building momentum for states to pass the law by “incentivizing state legislatures and states to do something they may not otherwise do," said Mitchell, an architect of the Uniform Partition of Heirs Property Act.

The law has been enacted in 17 states since 2011. Among them, Florida, Mississippi, New York and Virginia enacted the law this year. Six more states and Washington, D.C., have introduced legislation.

"By 2025, I wouldn't be surprised if we had 25 states or jurisdictions," Mitchell said.

Virginia expanded the law passed elsewhere by making provisions applicable to all partition suits involving tenancy in common property, or all land passed on without a will.

"There was not one dissenting vote against the bill," said Alexander of the of Black Family Land Trust. "We were blown away by that."

While heirs’ property is often thought of as a rural phenomenon involving Southern Black people, advocates in Virginia framed the heirs’ property debate around a lack of education and resources on the topic among all residents, regardless of race or geography, Alexander said.

A co-op or condo owner in Richmond who dies without a will leaves their property without a clear title, or intestate. "It's no different if you die with a 100-acre farm in Caroline County, Virginia," Alexander said. "You create heirs’ property if you die intestate, and how we address that is going to be the same."

The Uniform Law Commission, which crafts legislation to promote consistency among state laws, released the Uniform Partition of Heirs Property Act in 2010.

Earlier this year, it set up a study committee to consider recommending a change to default rules of tenancy in common, a system of shared ownership that requires unanimous agreement among owners when deciding how to manage a property. The study could result in a report, followed by a drafting commission and eventually another uniform law proposal.

"Why should we lock these families into this dysfunctional form of ownership?" Mitchell asked. "We should reduce that requirement. This is the continued vestige of Jim Crow."