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February 03, 2023

Property title woes compound pain of disaster survivors

Given its experiences starting with the devastation caused by Hurricane Katrina, the state of Louisiana has emerged as a case study of what can happen when longtime family landowners don’t create wills to pass along their holdings to future generations and don’t keep property titles up to date.

Experts discuss challenges of proving land ownership at the Midyear program “Addressing Heirs' Property Matters Using a Multiplicity of Approaches.”

Experts discuss challenges of proving land ownership at the Midyear program “Addressing Heirs' Property Matters Using a Multiplicity of Approaches.”

Hurricane Katrina in 2005 flooded New Orleans and surrounding rural properties, forcing many to relocate short and long term. Then extensive, historic flooding around Baton Rouge in 2016 had a similar effect.

In both cases, families whose prior ancestors had initial title to the land — or no legal title at all — later found that their claim to the property was in jeopardy, prompting legal issues in qualifying for governmental programs and services and clear titles to dispose of the land. The situation, which began in southern states mostly with Blacks with limited education, has now emerged as a national problem prompting state action throughout the United States.

As Thomas W. Mitchell, a national expert on heirs’ property matters and a professor at Boston College Law School, said Feb. 3 at a program at the 2023 ABA Midyear Meeting in New Orleans, the heirs’ property issue now “impacts every race and ethnicity although Black families disproportionately.”

Sponsored by the ABA Section of State and Local Government Law, “Addressing Heirs' Property Matters Using a Multiplicity of Approaches” explored how this issue in Louisiana began in the post-Katrina period and accelerated along what is known as the floods in the River Parishes along the Mississippi River nearly seven years ago.

“Property is passed along generationally,” said Jonathan Reynolds, heirs’ property staff attorney at Louisiana Appleseed, a law and justice nonprofit based in New Orleans. “But people do not have any type of clear title, and therefore lack the appropriate authority to qualify for services.”

During the past decade nationally, an increasing number of nonprofit and governmental entities have focused on the issue, with land and property organizations springing up nationwide to offer typically underrepresented persons legal and other support.

The help is not only in navigating the service provided by governmental agencies, such as the U.S. Department of Agriculture Forest Service. Efforts are expanding to steer rural southerners and others to focus on estate planning and wills to pass along land and other wealth. Also in these situations, there are often multiple family members, sometimes in double digits, who press claims of a percentage of ownership and some agencies provide mediation services to untangle what Mitchell calls “gridlock ownership” that can land in lengthy court battles.

Mitchell, who previously was a law professor in Wisconsin and Texas, has a long history of working in this area, and a 2015 Pew article noted that he had initiated efforts to develop nationally a uniform state law, called the Uniform Partition of Heirs Property Act. At that point, a handful of states had embraced it. At the panel, he said as many as 22 states have adopted it, in addition to the Virgin Islands and the District of Columbia, and that others, including three Midwest states, are considering it.

Still, the effort is “under-resourced” but there has been “phenomenal growth and progress,” he said.

A third panelist, Alycia Grace-O'Bear, an assistant professor at the Southern University Law Center Clinical Legal Education, among other affiliations, also applauded progress, citing a “combination of alliances and software” that has helped to identify family landowners going back decades. But, she added, often people are unaware of the legal guidelines and that property titles have not been kept up.

The lessons from Katrina and the River Parishes flooding, she noted, spotlight situations where people are unaware of their legal predicament until it is too late.

She cited a case in Louisiana where a family lived on the property for some 75 years “but never had a title.” Also, she noted, that in Louisiana a family can apply for a title after living on the property for 30 years, but first “you need to know” about the law. Sadly, she added, many don’t.