Restoring Property Rights to Farmland Heirs’ Property Owners Through Federal Intervention
Heather Francis
—
Since 1910, Black farmland owners have lost approximately 14 million acres of land in the U.S.[1] This considerable loss results from heirs’ property legal challenges, such as partition actions, foreclosure sales, and adverse possession issues.[2] Heirs’ property occurs when someone dies without a will, and their land passes to their children, spouse, parents, or other family members.[3] Heirs’ property owners hold the land as tenants-in-common, sharing an undivided, fractional interest in the land.[4] Tenancy-in-common is the “most widespread form of common ownership in the United States” because about half of Americans do not make wills.[5]
Heirs’ property challenges substantially burden Black landowners who have difficulty paying for an attorney to solve their property issues. Consequently, forced partition sales continue to disproportionately impact Black landowners.[6] Heirs’ property owners cannot secure “traditional mortgage financing or business loans” because they do not have a clear title to their land.[7] Without a title or deed, heirs’ property farmland owners have difficulty securing loans or aid from the United States Department of Agriculture (USDA).[8] In many cases, state USDA offices do not approve these owners for loans or disaster relief funding because landowners fail to prove ownership since tenants-in-common landowners cannot produce a deed.[9]
The Uniform Partition Heirs Property Act (UPHPA) contains model provisions aimed at reforming state partition laws. These model provisions would help heirs’ property owners retain possession of their land.[10] Individual states can enact this model bill in their jurisdiction.[11] Additionally, two provisions of the 2018 Farm Bill authorize the USDA to support heirs’ property owners. First, the Farm Bill allows heirs’ property owners to receive a farm number and loans from the USDA.[12] Second, the Farm Bill establishes a re-lending program to help heirs’ property owners resolve title issues.[13] But the USDA has yet to implement these provisions, so heirs’ property owners are not receiving either form of aid.[14] These reforms are not enough to normalize heirs’ property ownership or address legal challenges for heirs’ property owners.
This Note argues the federal government needs to pass more federal programs, enforce existing heirs’ property programs, and analyzes whether the federal government can pass the UPHPA on a federal level. Part I examines heirs’ property and legal challenges these owners face dealing with partition law. Part II details significant problems heirs’ property owners face by highlighting how farmland heirs’ property owners do not have access to federal programs through the USDA. This part also examines the UPHPA’s impact in states by analyzing whether the UPHPA has had a positive, neutral, or negative impact on heirs’ property owners. Part III argues for a federal intervention through expanding Farm Bill provisions for more protection for heirs’ property owners. Finally, this Note concludes by describing alternative solutions to the UPHPA and emphasizing the need for a federal intervention for farmland heirs’ property owners.
[1] Faith Rivers, Inequity in Equity: The Tragedy of Tenancy in Common for Heirs’ Property Owners Facing Partition in Equity, 17 Temp. Pol’y. & Civ. Rts. L. Rev. 1, 31 (2007).
[2] Id. at 33.
[3] Restoring Hope for Heirs Property Owners: The Uniform Partition Heirs Property Act, Am. Bar Ass’n (Oct. 1, 2016), https://www.americanbar.org/groups/state_local_government/publications/state_local_law_news/2016-17/fall/restoring_hope_heirs_property_owners_uniform_partition_heirs_property_act/.
[4] Id.
[5] Id.
[6] Id.
[7] U.S. Dep’t Agric., Heirs’ Property and Land Fractionation: Fostering Stable Ownership to Prevent Land Loss and Abandonment viii (Cassandra J. Gaither et al., eds., 2019), https://www.srs.fs.usda.gov/pubs/gtr/gtr_srs244.pdf.
[8] Id. at 41.
[9] Id. at 79.
[10] Id.
[11] Thomas W. Mitchell, Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners 65, 72 (2019), https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=2313&context=facscholar.
[12] 7 U.S.C. § 2266(b) (2020).
[13] 7 U.S.C. § 1936(c) (2020).
[14] N.C. State Univ. Extension Serv., Heirs’ Property: Standing on a Lot of Love (May 21st, 2020), http://www.forestrywebinars.net/webinars/heirs-property-standing-on-a-lot-of-love/ (including a panel of property law experts discussing how the USDA has not implemented these existing statutes).