Reprinted from The Daily Yonder
by Sarah Melotte
“This land means so much to me, because I was there when my father saved his pennies and nickels and dimes to buy this land,” said Ercelle Chillis of South Carolina in an interview with the Charleston Regional Business Journal. “I was there when he struggled, pushed that cart in the street. I was there and I watched him; I know how hard he worked for it.”
In 1926, Chillis’ father purchased a seven-acre piece of land in Charleston, South Carolina, off Folly Road. When he died without a will, the property passed down to Chillis and her five siblings. Instead of working out ownership issues and getting a clear title to the land, the siblings left the old deed untouched because they received misleading legal advice.
Ercelle and her siblings held the property under ownership rights called heirs’ property. It’s a complicated and ambiguous type of ownership, one that leaves the heirs more susceptible to losing the land and to not realizing its full economic potential. Heirs’ property rights are one way developers walked away with some of the region’s most desirable and profitable land at bargain-basement prices.
The Challenges of Heirs’ Properties
When someone dies intestate, or without a will, ownership of their land passes to all heirs at an undivided and fractional interest. According to the state of South Carolina’s intestacy laws, if the heirs don’t take legal action to clear up ownership through probate within 10 years, the estate is deemed to be heirs’ property. But unlike land with a clear title, heirs’ properties come with a host of difficulties.
“If [three people] bought a three-acre tract, some people might look at that and go, OK, they each have one acre. That’s not the case” with heirs’ property, said attorney Josh Walden of The Center for Heirs’ Property Preservation in an interview with the Daily Yonder.
The three owners would each have a fractional interest in the entire property. With each party having full ownership rights, they could decide together how to manage the land .
But the number of owners can multiply quickly as deaths occur and land passes immediately to the deceased’s heirs. From siblings, the 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 this is where it gets tricky,” Walden said. “The same law applies to [the three of] us as it would a family of 100 who inherited [the land] over multiple generations. And any one of us has the right to bring what’s called a forced partition sale… so I can request the court to sell the property and then allocate each of us the proceeds in accord with our respective interests.”
Developers will sometimes target heirs and get them to sell their fractional rights to the land, Walden said. With that 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 the interest of an heir and then file partition action against the other heirs and [the land] can end up for sale if [the other heirs] don’t buy me out,” Walden said.
If the other heirs can’t afford to buy out the developer, the property gets sold, often for a rate below market value.
If the property does remain in the family, other legal challenges impede one’s ability to tap the land’s economic potential. Without a clear title, families are unable to get loans or access to credit, among other things. In the case of a disaster, heirs can struggle to qualify for FEMA aid or other kinds of relief. After hurricanes Katrina and Rita, federal funds poured $9 billion into fixing private properties but had to reject “15% of applicants because of title issues.”
Parcels particularly vulnerable to this dynamic in South Carolina are in the Gullah Geechee Corridor, a strip of land once predominantly inhabited by enslaved people that runs along the coasts of North Carolina, South Carolina, Georgia, and northern Florida. Property values were once low in the corridor because it was swampy and mosquito infested, but the area is now in high demand for resort-style development. One well known development in the region is Hilton Head, South Carolina, where the median home price is over $500,000.
“The old saying is Hilton Head looks like Hilton Head for a reason,” Walden referred to the island’s vacation homes and golf courses. “There are a lot of the vulnerable ownership forms [in that area] and outside parties buying the interest of an heir.”
Black Land Loss in the South
The South Carolina coast did not always look like modern day Hilton Head.
“In 1910… more than 90% of the 2700 farms in Charleston County 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 a region known as the Black Belt. That number dropped significantly by the end of the 20th century. Although the rates of Black land ownership did improve in the 2000s, they never reached their former level. By 2017, the 13% of Americans who were Black only owned 8 million acres — 1% of the nation’s privately owned acreage.
Black Americans lost land in the 20th century for a variety of reasons, including violence, intimidation, immigration to the North, and discrimination by the USDA. But legal experts also blame vulnerable forms of land ownership, such as heirs’ property.
Rural Heirs’ Properties
Although heirs’ property is not just a rural issue, it can have special implications for rural owners.
“If you don’t have a clear title, you can’t make the land work,” Walden said. “If you’re a farmer … if you’re a forester you need that [legal] recognition in order to have access to governmental programs to be successful at getting the land to work for you.”
Organizations are trying to fix that problem. The Sustainable Forestry and African American Land Retention Network, for example, supports Black rural land owners with the goal of keeping land in the family and increasing wealth through forestry. But there are still pressures that threaten land ownership for Black Americans.
As development sprawls from an urban center, adjacent rural areas face higher demand for housing and other resources. The vacation development areas along the coast of South Carolina, for example, continue to put pressure on land farther inland, Warden said. Heirs’ properties in South Carolina are therefore increasingly more likely to be snatched up by developers hoping for a good deal.
“All we knew was that she had a bunch of property,” said tree farmer Ronald Richards about his grandmother’s land in a video produced by the Center for Heirs’ Property Preservation. “And when she got sick… the property lay dormant for 20-25 years.”
Richards’ father paid property taxes to retain the land every year, but it bothered Richards that they could not get access to the land’s wealth. The Center for Heirs’ Property Preservation helped Richards turn the once neglected land into a sustainable forest by obtaining a clean title. Although outside interests wanted to buy the property, he preferred to have the land remain in the family since his grandmother worked hard to keep it in the family.
Obstacles to Titleship
Obtaining a clear title is not always easy.
The people with the information on how to protect one’s land can also be the same people who discriminate and exploit people of color. Some White attorneys, for example, refused to represent Black clients.
“Folks of color just didn’t necessarily trust attorneys or the justice system and there was a reason for that,” Walden said.
But racism is not the only barrier to obtaining land protection.
“You’ve got to pay an attorney, you know,” Walden said. “A lot of these folks are maybe land rich and cash poor in regards to the availability of funds to hire an attorney or to resolve heirs’ property.”
Other cultural factors can influence someone’s decision to keep land as heirs’. Because heirs’ property can be viewed as “family-controlled common property” according to anthropologist Sarah Hitchner, families might prefer to retain a communal ownership structure.
Hope through Legal Reform
Natural disasters spurred an interest in legal reform throughout the Southeast in the 2000s because of disaster assistance access problems. In 2008, hurricane Ike brought attention to heirship issues in Galveston, Texas. By 2009, heirship affidavits could be used to help heirs obtain disaster assistance. Heirship affidavits are simple forms that allow land to be inherited without court proceedings. In 2014, Texas passed a transfer-on-death deed, which prevented new formations of heirs properties. Nineteen states have since enacted the Real Property Transfer on Death Act, which allows property 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 buy out other heirs’ to avoid forced sales. The Uniform Partition of Heirs Property Act also requires properties to be appraised to ensure that the sell price is at market value and that all heirs receive a fair share of the profit.
“Hopefully the next generation after me will have something they can come and enjoy … and they don’t have to lose it,” Ronald Richards said as he sat among his sustainable forest of about 30,000 trees, wealth now accessible to him and to the people who come after him.