On one of the barrier islands ranging up the southeastern coast of the United States from northern Florida to the Outer Banks of North Carolina, there is a parcel of land that is owned by the descendants of a former enslaved person who was able to acquire the property after the Civil War during Reconstruction. During that person’s lifetime, the holding grew from less than ten acres to more than double that amount. As time went on, the original owner died but left no will, and the property was not administered in probate court; but the land was inhabited by the original owner’s heirs for successive generations. The property was never subdivided, and no deed of title was exchanged or recorded. One hundred years later, there were over one hundred heirs of the original landowner living, and several still lived on the property in a settlement of houses spaced apart to suit the inhabitants.
Only one public road led to the barrier island, and the only means of accessing the property was a dirt road or “old way” created mainly by use of the owners of the property. The old way crossed portions of two other farming parcels to reach the property, but for decades the owners used that old way and were not challenged in that use. As the 1900s became the 2000s, though, the other areas of the barrier island, which has ocean-front access, became developed and highly desirable, and the farming properties over which old way ran were subdivided and sold for considerable sums to developers who obtained approvals to build million dollars houses on five-acre tracts. At some point, as the initial road and sewer improvements began to be installed for the subdivision, the old way was blocked, and the heirs who still lived on the property or who lived in other areas of the country but visited relatives on summer vacation could no longer access their property. Accusations and counter-accusations ensued, both sides hired lawyers, and a lawsuit was filed.
This factual situation, modeled loosely on a reported case in the South Carolina appellate courts that will be explored more fully in this article, is a common one anywhere in the country where cultural and historic conditions have led to situations in which land is held for multiple generations in the same family, but the transactions between the heirs is not recorded and access to or across the land is by private roads or ways that are not dedicated or the subject of formal written easement agreements. This intersection of unrecorded interests in land, heirs property, and prescriptive easements presents a particularly challenging problem for the present generation to untangle. Further, a litigated solution is often a blunt instrument producing an unsatisfactory outcome in that it could result in one property owner having a surprise encumbrance on property that prevents them from planning the property as they had intended or the other side from having satisfactory access to the property that they and their family have enjoyed for generations.
This article will explore the law of prescriptive easements in the context of these factual situations and the history and law related to heirs property, particularly in the American Southeast, where it is common in historic African-American settlement communities with origins with former enslaved people who acquired property after receiving their freedom, who did not leave wills or have the property administered through probate, so that the property passed down to successive generations of heirs who held the property as tenants in common. The heirs property discussion will also include a review of the Uniform Partition of Heirs Property Act (UPHPA) now enacted in eighteen states and the U.S. Virgin Islands. The legal citations in both sections will have a South Carolina appellate court concentration, since this locale is where the author practices and where these factual circumstances are common. The law of prescriptive easements and those governing heirs property are not unique to South Carolina, however, and readers will be able to generally apply these principles to their own jurisdictions, with some adjustment for local practice or legal variation. Then, as one example of such an intersection of these two unrecorded interests in land, the article explores the opinion of the South Carolina Court of Appeals in Frazier v. Smallseed, which illustrates how one court dealt with these issues in a particular factual situation. Finally, the article addresses how providing access on or to heirs property could be resolved without resort to litigation or by using litigation cooperatively to reach a resolution by agreement.
An easement is a right given to a person to use the land of another for a specific purpose. An easement may arise in three ways: (1) by grant; (2) from necessity; and (3) by prescription. A prescriptive easement is not implied by law but is established by the conduct of the dominant tenement owner. Establishing a prescriptive easement does not confer ownership of property; it only confers the right to use that property.
The Restatement of Law (First) of Property, Servitudes Section 457, compressed the findings needed to establish a prescriptive easement as follows: “An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted.”
In South Carolina, as one example, to establish a prescriptive easement, one must show (1) continued and uninterrupted use or enjoyment of the right for a period of twenty years; (2) the identity of the thing enjoyed; and (3) use or enjoyment that is either adverse, or under claim of right. The alternate terms in the third element “adverse” and “claim of right” are, in effect, the same thing rather than two alternative ways of satisfying the element. A simplified characterization of the test is that “the claimant must identify the thing enjoyed, and show his use has been open, notorious, continuous, uninterrupted, and contrary to the true property owner’s rights for a period of twenty years.” There is no requirement of exclusivity of use to establish a prescriptive easement.
A claimant’s belief regarding the permissiveness of the use of property is irrelevant when determining the existence of a prescriptive easement. Courts only determine whether the claimant’s use was indeed adverse. Evidence of permissive use defeats the establishment of a prescriptive easement because use that is permissive cannot also be adverse. Any use of property that is not hostile or adverse to the interests or title of the property owner cannot ripen into a prescriptive right.
The asking and obtaining of permission, whether from the tenant or owner of the servient estate, stamps the character of the use as not having been adverse, or under claim of right, and, therefore, as lacking that essential element which was necessary for it to ripen into a right by prescription. If the permissive use begins at inception or the time of purchase and continues, this permissive use can never ripen into a prescriptive easement. However, permissive use may not always begin at the inception of the claimant’s ownership. Permissive use, which is granted during the claimed twenty-year period, will defeat the establishment of a prescriptive easement, (i.e., once permission is granted by the landowner there is no longer adverse use or use under a claim of right).
When a claimant has enjoyed an easement openly, notoriously, continuously, and uninterruptedly, in derogation of another’s rights, for the full period of twenty years, the use will be presumed to have been adverse. “Open” generally means that the use is not made in secret or stealthily. It may also mean that it is visible or apparent. “Notorious” generally means that the use is actually known to the owner or is widely known in the neighborhood.
Once the presumption applies, the servient owner bears the burden of rebutting the presumption, which can be done by showing permissive use. To satisfy the twenty-year prescriptive period, the claimant can tack his use to use by prior owners, provided that the prior owners’ use also satisfies the prescriptive easement elements.
Successive uses of land by different persons may be tacked, or added together, to satisfy the prescriptive period. Tacking is permitted when the successive adverse users are in privity of estate. Although the requirement of privity has been variously defined, the prevailing view is that there must be some relationship whereby the successive users have come into possession under or through their predecessors in interest. It follows that the claimant may not tack the claimant’s adverse use to that of strangers, nor may a claimant tack the claimant’s adverse use to that of a predecessor in title when the predecessor’s usage terminated before claimant acquired the land. Moreover, a claimant cannot tack adverse use with prior adverse use when intervening parties used land with permission. Nor is tacking permissible when it is unclear that such use by claimant’s predecessor was adverse. To establish continuity of use by tacking, a claimant must show that predecessors in title actually used the alleged easement. “[I]f tacking is used, ‘the use by the previous owners must also meet the requirements of a prescriptive easement.’”
To establish a prescriptive easement, one must show in addition to adverse uninterrupted and continuous use, the identity of the thing enjoyed. The “thing,” though, can simply be a right of way that has been used for the requisite period of time. Most jurisdictions do not require a right of way to terminate on public property. A prescriptive easement is established by identifying the things used or enjoyed and showing that it was used or enjoyed adversely, continuously, and uninterrupted for twenty years.
The party claiming a prescriptive easement has the burden of proving all elements. States differ on whether the standard of proof for establishing the elements of a prescriptive easement are by preponderance of the evidence or by clear and convincing evidence.
In South Carolina, the courts have opted for the more stringent standard. “[A] private way is an easement in favor of another, in derogation of the rights of the owner; and hence is not to arise without clear, unequivocal proof of such facts as will give the right from the owner to the claimant.” This language has become standardized into a requirement for clear and convincing evidence, analogizing the establishment of a prescriptive easement to a cause of action for adverse possession.
There are, though, fundamental differences between a claim of adverse possession and one by prescription. Specifically, “adverse possession operates to divest title to the land at issue whereas the rights of prescriptive easement in land are measured and defined by the use made of the land giving rise to the easement.” Important reasons exist, nevertheless, for applying a heightened standard of proof. By claiming a prescriptive easement, a claimant seeks for a property owner to forfeit rights to the subject property. Given that a prescriptive easement results in diminished rights of the property owner, most courts hold the claimant to a stricter standard of proof.
Prescriptive easements are characterized in part by being interests in real estate that are not found on the public record. Though the “old way” may be on a recorded plat or a Sanborn map, the interest of those entitled to use the easement is not apparent, and it is often only through interruption of that customary use over a long period of years that such interests become known to the owners of the land over which the easement is being imposed.
Another form of ownership that is in some ways “off the record”—and likewise may extend across and through generations of owners—is heirs property. Heirs property is real property that is jointly owned, often by tenancy in common by descendants of a deceased person through intestate succession. These heirs may live on or otherwise use the property, but they do not have clear or marketable title.
This lack often poses great difficulties in putting the property to use, either through sale, leveraging the equity to borrow money, or creating income-generating opportunities through leases or licenses. The property could serve as a place for the heirs or family members to build their homes and live, often for generations, in communities sometimes referred to as “settlements.” Additionally, some heirs do farm, timber, or otherwise put the property to productive use but often without agreements on who is to make the investment in the property and how the profits from the activity are to be divided, so the heirs are not incentivized to do more than pay the property taxes to keep the property from being sold on the courthouse steps. That obligation, though, is sometimes the source of the loss of land, equity, and future wealth for these families.
Beyond these difficulties, the procedure of forced partition sales under many states’ laws has for many decades contributed to widespread and devastating involuntary land loss among families who owned these tenancy-in-common properties.
Heirs property tends to be property in which interests get transferred repeatedly by intestacy over time. This transfer by intestacy expands the ownership group from one generation to another in a more substantial way than when property transfers within a family are done by devise. Though poor and uneducated people in general have comparatively low rates of will-making, intestacy also has a definite racial element. To this end, the rate of intestacy among African Americans is more than double the rate of intestacy among white Americans, and only about twenty percent of African Americans have wills.
Those who own heirs property in an area that is rapidly developing are particularly susceptible to developers who want to acquire the property even if nearly all of the cotenants do not want to sell their land. If such a speculator or developer can purchase the fractional interests of just one cotenant, thereby becoming a tenant in common, that speculator or developer can then petition a court to order partition by sale.
Traditionally, at common law, tenants in common were allowed to request partition in kind as equitable remedies in a partition action. Around the time of the Civil War, some states began to allow tenants in common to request partition sales with the sales proceeds to be distributed pro rata to the owners based on their ownership interests. As with partition in kind, any tenant could request this remedy no matter how small their interest. Given this power, state statutes allowing for this often did not allow the partition sale if partition in kind would result in “great prejudice” or “substantial injury.” Despite this intended protection against misusing the partition by sales option, many state courts over the past several decades have allowed partition sales if the tenant seeking the sale could show that the aggregate sale amount of the whole parcel was more than the aggregate value of the sale of the parts. This method allowed for abuse by those wanting to force a sale to buy the property out from under the family owners and did not recognize the inherent or noneconomic value of property ownership by the family. This abuse led the need for reform, and the Uniform Law Commission met the challenge by drafting and pushing for adoption in the states of the Uniform Partition of Heirs Property Act (UPHPA).
The UPHPA applies to “heirs property,” defined as real property held in tenancy in common where (a) there is no agreement in a record binding all the cotenants that governs the partition of the property; (b) one or more of the cotenants acquired property from a relative, whether living or deceased; and (c) any of the following applies: (1) twenty percent or more of the interests are held by cotenants who are relatives, (2) twenty percent or more are held by an individual who acquired title from a relative, whether living or deceased, or (3) twenty percent or more of the cotenants are relatives.
The UPHPA addresses the partition by sale abuses described above in several ways. First, if a cotenant requests a partition by sale, the other cotenants must be afforded an opportunity to acquire the interests of the cotenant who requested the sale at an appraised value set by a process provided by the UPHPA. Second, if the cotenant buyout provision does not result in the purchase of the cotenant’s interest who requested the sale, the UPHPA expresses a strong preference for partition in kind unless manifest or great prejudice to the parties would result and rejects the purely economic test that had developed in state courts. Third, if the court determines in balance that the best alternative for all parties is the partition sale, the UPHPA provides an open-market sales provision to ensure that the full value of the property that is being sold is realized for the owners who can capture the wealth that has been generated over the years and put that wealth to other uses as they see fit.
Though the UPHPA is a vitally important and significant reform in the law of tenancy-in-common, partition sales, and heirs property, many instances of heirs property ownership remain and will continue for various reasons, and this form of ownership will continue to pose legal and practical hurdles for the family owners themselves and for those who wish to or are required to deal with them as a land ownership group. One such example of this is when adjoining property owners either have to access their own property across traditional rights of way on heirs property land, or the heirs have to access their own property using these “old ways” as has been their custom for many years, even though the rights of way are not publicly dedicated and there are no written legal agreements, such as licenses or easements in place. The following case presents one such example.
The Frazier case represents a situation in which these two examples of unrecorded interests in land, used over periods of time extending over generations, can intersect and clash, and how one court dealt with one particular fact situation.
The property at issue in Frazier was a parcel of land in Beaufort County on Corn Island, identified as Lot 9.
Eve Green purchased eight acres of land on Corn Island from George Holmes in 1881. By 1889, Green had increased her holdings on Corn Island from eight to twenty-two acres. Frazier and Brailford are Eve Green’s descendants (the Green Heirs).
In 1954, when Beaufort County began to keep tax records by district, map, and parcel numbers, the property record card for Green’s twenty-two-acre parcel was designated as Parcel 1 on Map 12 in the name of “Heirs of Eve Green.” Parcel 1 on Map 12 included Lots 9, 23, 24, and 26 in Section 29. Lot 24 is directly below Lot 9, while Lot 23 abuts Lot 24 on the east, and Lot 26 is immediately to the south of Lot 23. Green or her heirs paid taxes on the twenty-two-acres until 1997. In June 1997, the Green Heirs sold Lot 26 and a small portion of Lot 23 to Broadus Thompson and his wife, Patricia Thompson.
In the trial of this matter, the adjacent property owners, the Hannas, argued they had been in open, notorious, hostile, continuous, and exclusive possession of Lot 9, part of the Green property, for a period in excess of ten years and asked the trial court to award title to the property by reason of adverse possession under color of title. Two of the Green Heirs, Frazier and Brailford, argued they were entitled to an easement over Cassena Road and Cassena Island Drive, which had been constructed by the Hannas and crossed the Hannas’ property. Matthew McAlhaney, who had a contract to purchase Lot 9 from the Green Heirs Frazier and Brailford, sought to and was allowed to intervene.
At the trial’s conclusion, the trial court found that (1) the Hannas did not own Lot 9 by adverse possession and that (2) Frazier and Brailford were entitled to an easement by prescription over Cassena Road and Cassena Island Drive. The trial court denied the Hannas’ post-trial motions, and this appeal followed.
The Court of Appeals first turned to the adverse possession claim over Lot 9 by the Hannas and upheld the trial court’s decision that, because the Hannas did not fence the property or otherwise exercise dominion over it, the Hannas could not make out their claim for adverse possession.
The court then considered the Hannas’ argument that the trial court improperly concluded that two of the Green Heirs, Frazier and Brailford, were entitled to an easement by prescription over Cassena Road and Cassena Island Drive. Since the determination of the extent of a grant of an easement is an action in equity, the court took its own view of the evidence on this issue. The only public road leading to Corn Island is Coosaw River Drive. Prior to 1994, the only means of accessing property on Corn Island from Coosaw River Drive was by a road (Old Road) that crossed the properties of the Hannas, another property owner, and the Green Heirs. The Old Road ran along the southern boundary of the Hannas’ and the other property owner’s property and crossed onto the property of the Green Heirs. The location where the Old Road crossed the Green Heirs’ property was sold to the Thompsons. Based on these facts, the trial court concluded the Green Heirs possessed a prescriptive easement over the Old Road.
In addition to finding this easement, the trial court relocated the easement to a new road constructed by the Hannas. In 1994, Mr. Hanna cleared a new road that crossed the Hannas’ and other owner’s property. This new road is called Cassena Road from the point that it intersects the public road, Coosaw River Drive. Cassena Road splits at a point north of the boundary between the Hannas property and property owned by the Thompsons. The section of Cassena Road that goes north onto the Hannas’ property is called Cassena Island Drive, while the section that heads south onto the Thompsons property is called Cassena Road. After Cassena Road was built, the Old Road fell into disuse and became obstructed by debris and trash. As a result, the Thompsons, the other property owner, and the Hannas employed Cassena Road and Cassena Island Drive to access their properties.
With respect to the first element of the prescriptive easement test, continued and uninterrupted use for the full period of twenty years, the court found that no evidence showed the Green Heirs used the Old Road for the required twenty years or used it at all, for that matter. Several witnesses said that they never saw the Green Heirs use the Old Road, and the trial court did not identify any such use in its order.
The Court of Appeals then examined the trial court’s finding based on estoppel. The trial court stated in its order:
[T]he Hannahs [sic] are estopped to deny that the easement of Frazier and Brailford moved when Donald G. Hannah [sic] relocated the road. The “old road” had been in place and had been used by all owners on Corn Island for a period sufficient to establish the easement by prescription, at the time Donald G. Hannah [sic] made his decision to move the road . . . .
The appellate court outlined the essential elements of estoppel as related to the party estopped as:
(1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; [and] (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, the essential elements are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) prejudicial change in position.
Going back to its finding that the trial court erred in failing to recognize that there was no evidence that the Green Heirs used the Old Road, the court found that the Green Heirs could not make out the first element that requires the Hannas’ conduct to amount to a false representation or concealment of material facts or, at least, one that is calculated to convey the impression that the facts are otherwise than and inconsistent with those that the Hannas subsequently attempted to assert. Since the Court of Appeals found that the Hannas did not make any representations, and that their conduct did not amount to a false representation or concealment of facts with respect to the Green Heirs using the Old Road, the Hannas could not have made any representations to the Green Heirs. As such, the Court of Appeals found the trial court committed reversible error in concluding Frazier and Brailford were entitled to an easement by prescription over Cassena Road and Cassena Island Drive.
What is unclear from the per curiam opinion in Frazier, as reported, is what access is left to the remaining Green property and what effect this judgment has on the ownership rights of the Green Heirs in the property that remains. There is much information that has not found its way into the opinion, and it is hard to know in what position the court’s judgment left the parties. It is very likely that a negotiated or collaborative solution to this issue of ownership and access would have been more nuanced and elegant, and able to address the needs of the various parties involved, who all struggled in this litigation to assert their legal rights in these unrecorded property interests and to meet their needs in living on and putting this property to use. Searches for practical solutions, rather than litigated results, are the subject of the final thoughts in this article.
The UPHPA presents a valuable tool to help protect heirs property owners from the abuses of partition sales engineered by those who wish to use litigation and the courts to acquire heirs property for less than full value and/or against the will of most of the owners. That is not the only problem that confronts heirs property owners, though, as illustrated in one instance in Frazier. Should the heirs want to sell all or a part of the property, contracting for the sale requires obtaining signatures of, in some cases, literally hundreds of owners or owners’ representatives to convey a clear title. Also, being able to borrow money using a mortgage to make improvements to a home or the land by using the equity in the property, as many homeowners do, is nearly impossible with heirs property. Likewise, contracting as owners to allow for farming leases, timbering contracts, or other ways to put the property to productive use and generate revenue is also difficult unless the person signing the contract can bind all the owners.
To use the example that was described at the beginning of this article, is there a way, short of litigation, which might provide uncertain or unsatisfactory results, to resolve the access issue posed by prescriptive easements on heirs property land? Resolution and clearing of the title by the heirs would provide the best and surest way to allow the owners to deal with those wishing to enter into agreements with the heirs, either for access, sale, or licensing or leasing.
Public interest organizations, such as the Center for Heirs Pro-perty, which is headquartered in Charleston, South Carolina, provide innovative and effective services to the owners of heirs property to clear the title to the property and allow them to put the property to effective use. The object of the Center’s assistance might be to prepare the title for the property for sale by the family, but just as likely it may be to allow the family to keep the property and put it to productive use, such as a forestry operation, to maintain the family’s legacy of ownership, and to allow the family to continue to preserve and build wealth for generations to come.
The Center provides the following three main categories of service or “buckets of work”:
PREVENTION: Education and services to help prevent the growth of heirs property, including education seminars, probating estates, one-hour, free, legal consultations, and free simple wills clinics.
RESOLUTION: Services to help resolve heirs property title issues, including preparation of all legal documents, title searches, surveys, court filings (determination of heirs, quiet title action, quit claim deeds, etc.), and court proceedings.
SUSTAINABLE LAND USE: Education and technical assistance to help historically underserved landowners acquire knowledge and access to programs and forestry experts to manage their forestland for maximum income.
Under the Resolution category of work, the heirs can have their title searched, surveys completed, and court filings made that can determine the heirs, quiet the title, and take other action, providing them with a clear title. This process enables the heirs to move forward as cotenants under an agreement that allows for administration and contracting by agreement or perhaps by the formation of a family corporation with governing documents that permit decisions to be made and the authority to act on behalf of the ownership with third parties. In this way, the owners can use the courts and the title-recording process to exercise full authority and agency over their property.
In the instance of a party needing to enter into an agreement to terminate a prescriptive easement over a right of way, move the access to a more convenient location, or formalize what had been a customary use through a written permissive easement, working with the family with the help of legal professionals or a public interest organization like the Center for Heirs Property could be the surest and best way to clear the title and obtain legal authority to contract for the owners of the property, bringing resolution and certainty to an intersection of unrecorded interests in property and getting everyone safely and fairly from where they are to where they want to be.
A version of this article was previously published in The ACREL Papers: 2022 Mid-Year Meeting.
