Defying Great Odds—Mitigating Property Loss Through Historic Partition Law Reform in the U.S.

Thomas Mitchell didn’t expect to witness historic reform on black land loss in the U.S. during the peak of his career or even in his lifetime. National media attention, backing from Congress, providing policy advice to presidential campaigns, and passing a new law through legislation seemed unimaginable. Fifty years at least—that’s how long Mitchell expected it would take for his Uniform Partition of Heirs Property Act (UPHPA) to gain any traction. However, a shift in the paradigm and boost from the media helped push Mitchell’s Act through the floor of the legislature in 17 states and the U.S. Virgin Islands in a matter of years, not decades.

The UPHPA addresses partition action abuses that have led to significant property loss. Mitchell served as the principal drafter of the Act, promulgated by the Uniform Law Commission (ULC). An article he published in the Northwestern University Law Review (2001)—which was a refinement of his 1999 master’s thesis that he developed while earning his LL.M. from the University of Wisconsin Law School—laid the groundwork for the national drive to reform antiquated state partition laws.

Mitchell currently serves as a Professor of Law at Texas A&M University and Co-Director for the school’s Program in Real Estate and Community Development Law. Mitchell’s work involves researching rural and urban property loss issues and the legal mechanisms that sustain and facilitate this phenomenon across the country. In addition to his full-time career as a professor, Mitchell has devoted his life to mitigating these issues, which have disproportionately affected poor and minority communities nationwide.

If a landowner dies intestate with at least two heirs, the property passes to their inheritors as tenants-in-common under state law. This phenomenon is fairly common, given 40–60 percent of Americans die without a will or estate plan. Intestacy disproportionately impacts Black and LatinX communities, due to enormous racial and ethnic will-making and estate planning gaps. Real estate speculators often attempt to acquire a small share of heirs’ property in order to file a partition action and force a sale against the will of many disadvantaged families. Using this tactic, an investor can acquire the entire parcel for a price well below its fair market value and deplete a family’s inherited wealth. The forced sales of heirs’ property represent one of the leading causes of black land loss.

Following the Civil War, African Americans accumulated a significant amount of property through private purchase, despite the federal government reneging on its promise to distribute substantial amounts of confiscated confederate-owned land to freed slaves, totaling at least 16 million acres by 1910. Since then, these families have been stripped of billions of dollars’ worth of property, as Mitchell and his research collaborators are working on documenting at this time.

Upon initially acquiring these properties, the land typically was not considered “prime” real estate. Over time, new infrastructure such as bridges made many of these places easily accessible, and developers realized these lands had incredible economic potential. With the growth of tourism and suburban sprawl, that land found its way into the path of development and has become a target of forced partition sale.

“They [real estate developers and/or investors] see how vulnerable these families are, so they prey upon these families,” Mitchell noted. “It’s a national problem, but I think it’s been particularly pronounced in the South.” Mitchell outlines the core reasons how and why this occurs: “Unstable ownership circumstances, no will or estate plan, property owners who are property rich but cash poor, and a surge in real estate values.” Families who lack any practical access to affordable legal services are also more prone to property loss issues. Many owners were also the victims of other systematic inequalities, including predatory taxing, which also contributes to the country’s massive racial wealth gap. For instance, records indicate local officials deliberately inflated property taxes or set assessments too high in an effort to force owners off their land via tax sale.

A New Yorker article stated 76 percent of African Americans do not have a will—more than twice the percentage of white Americans. The properties these families own are commonly referred to as heirs’ property, which is a subset of tenancy-in-common ownership—the most unstable form of common real property ownership within the American legal system. Some have estimated that a third of Southern African American–owned land is held under these conditions.

Many of these owners didn’t have access to the legal system upon originally purchasing the property and sometimes didn’t have much faith in the law, given the long history of lawyers taking advantage of African Americans as well as the systemic racial discrimination they have faced in many courts and other parts of the legal system. Under tenancy-in-common ownership, a speculator or developer can purchase a fraction of the land from just one co-tenant and then petition a court to order partition by sale. In 2001, the Associated Press (AP) published a three-part, award-winning series about black land loss called “Torn from the Land,” placing the issue on a national stage. Mitchell was among the experts called to interview for the series.

In 2010, the ULC promulgated the UPHPA. It has since continued to gain momentum and defy long-held assumptions about the chances partition law could ever be reformed to respond to the needs of poor and disadvantaged property owners. The Act provides a series of simple due process protections: notice, appraisal, and the right of first refusal. If a court does order a property to be sold, the Act also calls for the sale to occur on the open market by a real estate broker using commercially reasonable practices and under the supervision of the court to ensure all parties receive their fair share of the proceeds.

It additionally weighs in non-economic factors, such as whether the property has historic or cultural value, whether a family has owned the property for a long time, and whether one or more of the common owners who had been using the property for a legal purpose would be harmed by a sale, including by having the quality of their housing substantially diminished or even by being rendered homeless. In addition to the 18 U.S. jurisdictions that have already enacted the UPHPA, several other states will be considering the UPHPA over the course of the next few years. “A provision in the 2018 federal Farm Bill that specifically mentions the UPHPA and provides incentives for states that have not enacted it to do so has been a game changer,” Mitchell noted.

Largely as a result of this Farm Bill provision, the UPHPA has been enacted into law in Florida, Illinois, Mississippi, and Virginia over the course of the past two years. Although Mitchell’s work on partition abuse in Southern states served as the initial impetus for the UPHPA, the Act has been well-received all around the country. In addition to the eight Southern states that adopted the Act, the UPHPA has been enacted in every region of the U.S. Mitchell notes partition law also has had a negative impact upon families from other racial or ethnic groups, whether these families have owned land in the South or in other regions. However, poor and disadvantaged families are at the highest risk of losing heirs’ property, due to forced sales.

“To this end, there are some commentators who have estimated that Hispanics in New Mexico alone in the late nineteenth and early twentieth century lost more than 1.6 million acres of property deemed by the federal government to be tenancy-in-common property and that partition sales accounted for much of this loss,” said Mitchell.

Native Hawaiians have additionally been negatively impacted by partition law, as a high-profile case from a few years ago involving Facebook CEO Mark Zuckerberg made clear. In urban places such as New York City, intense gentrification has made heirs’ property often owned by African Americans a target for real estate investors as an award-winning investigative report revealed in 2019—a report that served as the catalyst for New York state adopting the UPHPA.

Mitchell currently has a book in the pipeline about the UPHPA and heirs’ property that will be completed by the end of next summer. His co-editor is Erica Levine Powers, Chair of the State and Local Government Law Section of the ABA. The book, which will be published by the ABA, is titled Heirs Property and the Uniform Partition of Heirs Property Act: Challenges, Solutions, and Historic Reform.

The Law and Society Association is an interdisciplinary scholarly organization committed to social scientific, interpretive, and historical analyses of law across multiple social contexts. For sociolegal scholars, law is not only the words of official documents. Law also can be found in the diverse understandings and practices of people interacting within domains that law governs, in the claims that people make for legal redress of injustices and in the coercive power exercised to enforce lawful order. Sociolegal scholars also address evasions of law, resistance and defiance toward law, and alternatives to law in structuring social relations.