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Ensuring Rightful Property Ownership Through the Uniform Partition of Heirs Property

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Ensuring Rightful Property Ownership Through the Uniform Partition of Heirs Property voluntarily to sell their shares, or from executing a ENSURING RIGHTFUL PROPERTY OWNERSHIP THROUGH THE partition agreement. POLICY RECOMMENDATIONS UNIFORM PARTITION OF HEIRS PROPERTY ACT CONCLUSION Virginia Should pass the Uniform Partition Ebonie Alexander // Black Family Land Trust | Parker Agelasto // Capital Region Land Conservancy It is recommended that the UPHPA be adopted as a of Heirs Property Act. separate, parallel statute that applies only when the property to be partitioned meets the definition of “heirs Work to resolve Heir Property issues. property” contained in the UPHPA. The old law would INTRODUCTION the District of Columbia and New York where support continue to apply to all other partition actions. seems strong. States that have adopted the UPHP Act Heir property refers to land that has been passed down have reported no fiscal impact. One of the reasons why informally from generation-to-generation. In most this matters now is that in the 2018 Farm Bill, there is cases, it involves landowners who died without a will language that allows USDA dollars to be used to resolve and the land is owned “in common” by all of the heirs, heir's property if the property is in one of the states that regardless of whether they live on the land, pay the has adopted the UPHP Act; allowing landowners the taxes, or have ever set foot on the land. ability to fully participate in federal and state programs. BARN, TREE, AND VIEW OF THE APPALACHIANS IN THE SHENANDOAH VALLEY, VIRGINIA. Image credit: Shutterstock More than 900,000 black-owned farms comprised 14 percent of all farms in the US in 1920 yet the number HEIRS PROPERTY DISPROPORTIONATELY IMPACTS MIDDLE of black-owned farms dropped 95 percent to under AND LOW INCOME FAMILIES AND COMMUNITIES THAT DO NOT 46,000 in 1974. Researchers at Auburn and Tuskegee HAVE ACCESS TO AFFORDABLE LEGAL SERVICES. Universities estimate that there are between 150,000 to 175,000 acres of heirs’ property owned by people of any Adoption of the UPHPA would require the court to race or ethnicity in the 36 Black Belt counties in Virginia determine at the outset of a partition action whether and that this property conservatively is valued at $650 the property involved meets the act’s definition of heirs million. property. If so, the following special procedures are triggered: The rate of intestacy among African-Americans is more than double the rate of intestacy among white • The court must obtain an independent appraisal Americans and only about twenty percent of African- of the property with the value based on the full, Americans have wills. Heir property therefore continues undivided parcel; to be the leading cause of Black involuntary land loss. • Any one or more co-tenants, except the co-tenant who filed for partition, has a right of first refusal BACKGROUND to purchase the share of the property owned by The Uniform Partition of Heirs Property Act (UPHPA), a the filer for a proportional share of the court- project that the American Bar Association’s Section of determined value; Real Property, Trust and Estate Law helped convince • If no co-tenant exercises the right of first refusal, the Uniform Law Commission to undertake in 2007, the court must order partition-in-kind unless the seeks to address partition action abuses that have led court determines that partition-in-kind will result many Americans to lose their tenancy-in-common in great prejudice to the co- tenants as a group; property involuntarily in various legal proceedings. The • In making its determination under #4, the court UPHPA preserves the right of a co-tenant to sell his/her must consider a set of statutory factors that interest in inherited real estate, while ensuring that the includes a co-tenant’s sentimental attachment to other co-tenants will have the necessary due process, the property because of ancestral or other special including notice, appraisal, and right of first refusal, to value; and, prevent a forced sale. If the other co-tenants do not • If the court determines partition-by-sale is exercise their right to purchase property from the seller, appropriate, the property must be offered for sale the court must order a partition in kind if feasible, and on the open market at the court-determined value if not, a commercially reasonable sale for fair market for a reasonable period of time. If the property value. Heirs property disproportionately impacts does not sell at the offered price, the court retains middle and low income families and communities that discretion to accept a lower offer or to order a sale do not have access to affordable legal services. by auction or sealed bids. This UPHPA has passed in 13 other states - including UPHPA is designed to protect heirs who may be Alabama, Arkansas, Connecticut, Georgia, Hawaii, Iowa, unaware of their property rights and their vulnerability Illinois, Missouri, Montana, Nevada, New Mexico, Texas as co-tenants to partition. But nothing in UPHPA and South Carolina. Legislation is pending action in prevents co-tenants from reaching agreement 84 | CONSERVING VIRGINIA'S NATURAL LANDSCAPES.
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