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Heirs' Property and Land Fractionation: Fostering Stable Ownership To United States Department of Agriculture Heirs’ Property and Land Fractionation: Fostering Stable Ownership to Prevent Land Loss and Abandonment Forest Service Southern Research Station e-General Technical Report SRS-244, September 2019 EDITORS Cassandra Johnson Gaither, Research Social Scientist, Southern Research Station, U.S. Department of Agriculture Forest Service, Athens, GA 30602; Ann Carpenter, Director of Policy and Analytics, Community and Economic Development, Federal Reserve Bank of Atlanta, Atlanta, GA 30309; Tracy Lloyd McCurty, Esq., Executive Director, Black Belt Justice Center, Washington, DC 20013; and Sara Toering, Senior Fellow, Center for Community Progress, Atlanta, GA 30311. DISCLAIMER Reference herein to any specific commercial products, process, or service by trade name, trademark, manufacturer, or otherwise, does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government, and shall not be used for any endorsement purposes. EDITORS’ NOTE Papers published in these proceedings were submitted by authors in electronic media. Editing was done to ensure consistent format. Authors are responsible for content and accuracy of their individual papers. PHOTO CREDIT Covers: Dark wood background, © Can Stock Photo Inc. / rawf8. September 2019 Southern Research Station 200 W.T. Weaver Blvd. Asheville, NC 28804 www.srs.fs.usda.gov Heirs’ Property and Land Fractionation: Fostering Stable Ownership to Prevent Land Loss and Abandonment EDITORS Cassandra Johnson Gaither, Ann Carpenter, Tracy Lloyd McCurty, and Sara Toering ii ABSTRACT Real property passed to subsequent generations via intestate succession (i.e., without a will) is termed a tenancy-in-common, or more colloquially, “heirs’ property.” Property may also be classed as heirs’ property via an intentional simple will that divides real estate assets equally among descendants. With this kind of property ownership, co-heirs hold fractional interests in property that is not physically divided. As such, heirs’ property represents a form of collective ownership. Owners are private property holders but are limited in their ability to use such properties to build wealth because creditors typically do not accept these properties as bona fide collateral. Heirs’ property ownership is thought to be especially prevalent among rural African Americans in the Black Belt South, Appalachian Whites, Hispanics in U.S. southwestern colonia communities, and Native American groups (as fractionated lands). The U.S. Department of Agriculture Forest Service’s Southern Research Station and the Federal Reserve Bank of Atlanta hosted a gathering of heirs’ property researchers and direct legal service providers on June 15, 2017 in Atlanta, GA, with the aim to clarify problems associated with tenancies for these groups. The convening was organized into panels which addressed estimations of the extent of heirs’ property in the South, research on cultural aspects of heirs’ property ownership, and experiences of direct legal service providers, and included a discussion of how heirs’ property in urban areas contributes to abandoned and blighted buildings. Collaborators also worked to identify opportunities that would improve data collection, decrease property vulnerability, and better protect generational wealth. These proceedings include papers from many of the conference presenters as well as papers contributed by additional subject matter experts. Keywords: Appalachia, Black Belt, heirs’ property, land fractionation, land loss, Uniform Partition of Heirs Property Act. iii TABLE OF CONTENTS FOREWORD Heirs’ Property: Implications for Natural Resource Management Rob Doudrick . v Heirs’ Property in the Southeast: A Community Development Perspective Raphael Bostic . vii Heirs’ Property Facts: What the Data Reveal BLACK BELT STUDIES Learning about the Land: What Can Tax Appraisal Data Tell Us About Heirs’ Properties? Shana Jones and J. Scott Pippin .................................................. 3 Heirs’ Property and Persistent Poverty among African Americans in the Southeastern United States Conner Bailey, Robert Zabawa, Janice Dyer, Becky Barlow, and Ntam Baharanyi ............ 9 The Sustainable Forestry and African American Land Retention Program John Schelhas, Sarah Hitchner, and Alan McGregor .................................. 20 The Impact of Heirs’ Property at the Community Level: The Case Study of the Prairie Farms Resettlement Community in Macon County, AL Tristeen Bownes and Robert Zabawa ............................................. 29 APPALACHIAN STUDIES Towards a Better Understanding of the Experience of Heirs on Heirs’ Property B. James Deaton and Jamie Baxter ............................................... 44 Appalachia’s “Big White Ghettos”: Exploring the Role of Heirs’ Property in the Reproduction of Housing Vulnerability in Eastern Kentucky Cassandra Johnson Gaither .................................................... 49 continued iv TABLE OF CONTENTS cont . Legal Reform: Native American Buyback, Uniform Partition of Heirs Property Act, and Future Profit Sharing Divided Interests: Growing Complexity of Fractionated Property Rights in Indian Country and Possible Resolutions Patrice H. Kunesh ............................................................ 61 Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners Thomas W. Mitchell .......................................................... 65 Options for Countering the Faustian Bargain in the Judicial Partition of Heirs’ Property and the Enduring Phenomena of Investor-Speculator “Fishing” Phyliss Craig-Taylor ........................................................... 83 Taking It to the People: Essays on the Experiences of Direct Legal Service Providers Addressing Heirs’ Property in Louisiana: Lessons Learned, Post-Disaster Christy Kane, Stephanie Beaugh, and Gerren Sias .................................... 89 African-American Land Tenure and Sustainable Development: Eradicating Poverty and Building Intergenerational Wealth in the Black Belt Region Edward “Jerry” Pennick and Monica Rainge ........................................ 93 The Georgia Heirs Property Law Center, Inc.: Addressing Tangled Title and Economic Security for Georgians Skipper G. StipeMaas ......................................................... 98 AUTHOR CONTACT INFORMATION . .105 FOREWORD v FOREWORD Heirs’ Property: Implications for Natural Resource Management Rob Doudrick, Station Director, Southern Research Station, U .S . Department of Agriculture Forest Service, Asheville, NC 28804 . am honored to highlight research and technical assistance the U.S. Department of Agriculture Forest Service Southern Research Station (SRS) and its partners have completed I in regard to heirs’ property ownership. We have partnered with the Federal Reserve Bank of Atlanta to produce this publication which showcases some of the engagement taking place around this issue. The SRS represents 13 States extending from Virginia to Texas and Oklahoma. More than 86 percent of the forests in the South are privately owned, and certainly some of these properties are held as heirs’ property, although exact estimates are not known. Because heirs’ properties may be underutilized from an economic and land management perspective, we suspect that challenges surrounding heirs’ property ownership impact these landowners’ ability to manage forested land in terms of wildfire, flooding, and forest pest/disease mitigation. High proportions of rural, (often underserved) African Americans live in counties adjacent to national forests in South Carolina, Georgia, Alabama, and Mississippi, but there is relatively little understanding of how these landowners manage their forest lands or how this management may be impacted by heirs’ property ownership (Hitchner et al. 2017). Similar questions relate to the impact of heirs’ property on forest land management for rural Appalachian landowners (Deaton et al. 2009). One of the Forest Service’s primary goals is the conservation of forest lands—“keeping forests as forests.” Whether it is private, Federal, or State-owned land, the benefits of a forested ecosystem are invaluable. Forests help to clean our water and air, provide important fish and wildlife habitats, support numerous recreation opportunities, and serve as critical carbon sinks. Resolving heirs’ property issues can help landowners to participate in State and Federally- funded programs that encourage adoption of sustainable forest management practices that further these goals. The Forest Service motto is “Caring for the land and serving people.” I like to turn it around and say it starts with people first. We need to care for the people, so they in turn can care for the land. We know that caring for people impacted by heirs’ property issues—e.g., those with minimal technical assistance from State or local forestry agencies, or lack of knowledge and access to programs that could assist with more effective long-term land management—will in turn help us all care for the forests we value. Cassandra Johnson Gaither (SRS Research Social Scientist) and John Schelhas (SRS Research Forester) have been engaged with heirs’ property research for a number of years, in collaboration with numerous partners (Schelhas et al. 2017). Besides the partnership with the Federal Reserve Bank of Atlanta, SRS has partnered with the
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