By Sarah Melotte
“This land means so much to me, because I was there when my dad saved up his pennies and pennies and dimes to buy this land,” Ercelle Chillis of South Carolina said in an interview with the Charleston Regional Business. Log. “I was there when he struggled, pushed that cart down the street. I was there and I watched it; I know how hard he worked for this.
In 1926, Chillis’ father purchased a seven-acre lot in Charleston, South Carolina near Folly Road. When he died without a will, the property passed to Chillis and his five siblings. Instead of settling ownership issues and getting clear title to the land, the siblings left the old deed of ownership intact because they received misleading legal advice.
Ercelle and her siblings held the property in property rights called heirs’ property. It is a complicated and ambiguous type of ownership, which leaves heirs more likely to lose the land and not realize its full economic potential. The heir rights are a way for developers to grab some of the region’s most desirable and profitable land at bargain prices.
This 1910 census map shows the properties of black farmers. Each dot represents 50 farms. From 1900 to 2017, black homeownership nearly halved – from 15 million acres to 8 million acres.
The Challenges of Heir Properties
When a person dies intestate or without a will, ownership of their land passes to all heirs with an undivided and fractional interest. Under South Carolina state intestate laws, if the heirs do not take legal action to clarify ownership through probate within 10 years, the estate is deemed to be the property of the heirs. But unlike land with a clear title, heir properties present many challenges.
“Whether [three people] bought a three acre piece of land, some people might look at that and say, OK, they each have an acre. That’s not the case” with heirs’ property, attorney Josh Walden of the Center for Heirs’ Property Preservation said in an interview with the Daily Yonder.
The three owners would each have a fractional interest in the entire property. Each party having full property rights, they could decide together how to manage the land.
But the number of owners can multiply rapidly as deaths occur and the land passes immediately to the heirs of the deceased. From siblings, land can pass quickly into the hands of distant cousins, some of whom may not even know they have an interest in the property.
“So that’s where it gets tricky,” Walden said. “The same law applies to [the three of] us as if a family of 100 inherits [the land] over several generations. And each of us has the right to bring what is called a forced partition sale… so that I can ask the court to sell the property and then divide each of us the proceeds in accordance with our respective interests.
Developers sometimes target heirs and force them to sell their fractional rights to land, Walden said. With this partial ownership, a developer can force the sale of the land no matter what the other heirs want.
“So as a developer, I can buy an heir’s interest and then sue the other heirs for partition and [the land] may end up on sale if [the other heirs] don’t buy me,” Walden said.
If the other heirs cannot afford to buy out the developer, the property is sold, often at less than market value.
While ownership remains in the family, other legal challenges hamper its ability to exploit the economic potential of the land. Without a clear title, families cannot obtain loans or access credit, among other things. In the event of a disaster, heirs may have difficulty qualifying for assistance from FEMA or other types of relief. After Hurricanes Katrina and Rita, federal funds invested $9 billion in private property repairs, but had to reject “15% of applicants due to title issues.”
Patches particularly vulnerable to this dynamic in South Carolina are in the Gullah Geechee Corridor, a strip of land once mostly inhabited by slaves that runs along the coasts of North Carolina, South Carolina, Georgia and North Florida. Property values were once low in the corridor because it was swampy and infested with mosquitoes, but the area is now in high demand for resort-style development. A well-known development in the area is Hilton Head, South Carolina, where the median home price is over $500,000.
“The old adage says Hilton Head is like Hilton Head for a reason,” Walden referred to the island’s vacation homes and golf courses. “There are many vulnerable forms of property [in that area] and outside parties purchasing an heir’s interest.
Loss of muck in the south
The South Carolina coast hasn’t always looked like modern-day Hilton Head.
“In 1910…more than 90 percent of Charleston County’s 2,700 farms were run by black operators,” writes historian and scholar Levi Van Sant, Ph.D., of George Mason University in a 2016 study. .
These patterns in South Carolina follow national trends. In 1900, black Americans owned 15 million acres of rural land concentrated in an area known as the Black Belt. This number decreased considerably at the end of the 20th century. Although black land ownership rates improved in the 2000s, they never reached their earlier level. In 2017, the 13% of Americans who were black owned just 8 million acres, or 1% of the nation’s private acreage.
Black Americans lost land in the 20th century for a variety of reasons, including violence, intimidation, northern immigration, and USDA discrimination. But legal experts also blame vulnerable forms of land ownership, such as ownership by heirs.
Properties of rural heirs
Although heir ownership is not just a rural issue, it may have particular implications for rural landowners.
“If you don’t have a clear title, you can’t make the land work,” Walden said. “If you are a farmer… if you are a forester, you need it [legal] recognition in order to have access to government programs to successfully work the land for you.
Organizations are trying to solve this problem. The Sustainable Forestry and African American Land Retention Network, for example, supports black rural landowners with the goal of keeping land in the family and increasing wealth through forestry. But there are still pressures that threaten black American land ownership.
As development expands from an urban center, adjacent rural areas face increased demand for housing and other resources. Vacation development areas along the South Carolina coast, for example, continue to put pressure on land further inland, Warden said. The properties of heirs in South Carolina are therefore increasingly vulnerable to being snapped up by developers hoping to make a good deal.
“All we knew was that she had a bunch of property,” arborist Ronald Richards said of his grandmother’s land in a video produced by the Center for Heirs’ Property Preservation. “And when she got sick…the property sat idle for 20-25 years.”
Richards’ father paid property taxes to keep the land each year, but it bothered Richards that he could not access the wealth of the land. The Center for Heir Property Preservation helped Richards turn the once-neglected land into a sustainable forest by securing a proper title. Although outside interests wanted to buy the property, he preferred that the land remain in the family since his grandmother worked hard to keep it in the family.
Obstacles to ownership
Getting a clear title isn’t always easy.
The people who have the information on how to protect one’s land may also be the same people who discriminate against and exploit people of color. Some white attorneys, for example, have refused to represent black clients.
“People of color didn’t necessarily trust lawyers or the justice system and there was a reason for that,” Walden said.
But racism is not the only obstacle to obtaining land protection.
“You have to pay a lawyer, you know,” Walden said. “Many of these people may be land-rich and cash-poor when it comes to the availability of funds to hire a lawyer or settle the property of heirs.”
Other cultural factors may influence a person’s decision to keep the land as an heir”. Since the property of heirs can be considered “common property controlled by the family” according to anthropologist Sarah Hitchner, families might prefer to retain a common property structure.
Hope Through Legal Reform
Natural disasters sparked interest in legal reform throughout the Southeast in the 2000s due to issues with access to disaster assistance. In 2008, Hurricane Ike brought attention to legacy issues in Galveston, Texas. By 2009, heir affidavits could be used to help heirs obtain disaster relief. Affidavits of Inheritance are simple forms that allow land to be inherited without legal process. In 2014, Texas passed a deed of transfer on death, which prevented new formations of heir properties. Nineteen states have since enacted the Real Property Transfer on Death Act, which allows owners to designate an heir without probate proceedings.
In 2016, South Carolina state senator and Emanuel AME shooting victim Clementa C. Pinckney helped pass a landmark bill that allows an heir to redeem other heirs to avoid forced sales. The Uniform Heirs’ Property Division Act also requires properties to be appraised to ensure that the selling price matches market value and that all heirs receive a fair share of the profits.
“Hopefully the next generation after me will have something to come and enjoy…and not have to lose it,” Ronald Richards said as he sat in the middle of his sustainable forest. of around 30,000 trees, a wealth now accessible to him and to the people who come after him.
The Daily Yonder provides news, commentary and analysis on and for rural America. You can see daily coverage at dailyyonder.com.