All Land is not Creating Equal:Unleashing Family and Community Wealth through Land Ownership

“The Worst Problem you never heard of”: Heirs’ Property Ownership in Appalachia and the South

A project of the Livelihoods Knowledge Exchange Network (LiKEN) 

Heirs’ property is created when land passes without a will to two or more descendants who become “tenants in common” of the property. This kind of “tangled title” can make families vulnerable. Land speculators can acquire a small share of the property and force a partition sale, often far below fair market value. Extensive research across the Cotton Belt of the U.S. South has found that heirs’ property correlates with low wealth in African American communities. The U.S. Department of Agriculture considers heirs’ property to be the leading cause of African American involuntary land loss. Heirs’ property also seems to be common in other regions with entrenched poverty (Central Appalachia, the colonias in southern Texas, and Native American communities) but only a few scholars have studied the issue in these communities. Heirs’ property has been called “the worst problem you never heard of”. 

In October 2020, LiKEN began a project investigating heirs’ property occurrence and the experiences of heirs’ property owners in selected counties of Alabama, Georgia, and eastern Kentucky. This project is supported by funds from the Socially Disadvantaged Farmers and Ranchers Policy Center at Alcorn State University in Mississippi. In Alabama and Georgia, this project will assess outcomes of the Uniform Partition of heirs’ Property Act (UPHPA) by looking at changes in partition sales since the passing of the act and by talking to local officials, lawyers, and heirs’ property-owning families. In the selected eastern Kentucky counties, the project will estimate the frequency of heirs’ property and speak with heirs’ property owners to gain an understanding of their experiences and perceptions related to heirs’ property. 

How heirs’ property creates household vulnerability

The “clouded title” associated with heirs’ property can result in a variety of issues for landowners. Lack of clear title makes it difficult for an heirs’ property owner to make improvements to their property because they must obtain permission from all the other heirs. Depending on how many heirs there are, a number which can increase rapidly with successive generations, getting a consensus from all owners can be a nearly insurmountable obstacle. Clouded title also eliminates the option of using land and buildings as collateral on loans. In the event of a disaster, clouded title can make it impossible to access relief and resources. 

Another major risk heirs’ property owners face is the possibility of a forced partition sale. If one heir wants to sell the property, a judge may order a partition sale, even if all the owners are not in agreement. Over the past several decades, speculators and developers have taken advantage of this legal practice by buying one owner’s share of an heirs’ property, forcing the sale of the entire property, and buying it, often at a low cost. In the 19th and 20th centuries, coal speculators in Appalachia took advantage of the vulnerability of households with clouded titles. More recently, African American communities in coastal Georgia and South Carolina have lost family lands to developers seeking to profit from the tourism economy of the region. In already socially and economically disadvantaged communities, these challenges further dampen prospects for sustainable well-being and security.

Jeremiah Green on his farm in coastal South Carolina.
(Photo by Cassandra Johnson Gaither, USDA Forest Service)

Policy solutions: a beginning

As an effort to help preserve family wealth and reduce the likelihood of partition sales, the Uniform Partition of Heirs’ Property Act (UPHPA) was drafted in 2010. It has since been passed in 17 states and introduced in six others. In 2012 and 2014, Georgia and Alabama, respectively, passed the UPHPA. The act has not yet been introduced in Kentucky. Virginia enacted the UPHPA in 2020 (the only Central Appalachian state to do so). It was introduced in the West Virginia legislature in 2020.

Left: The historic home belonging to descendants of Willis Johnson, Sr. in Charleston, South Carolina.
Right: Two of Mr. Johnson’s heirs and current owners of the home, Rebecca Campbell (left) and Catherine Braxton (right). Photos by Cassandra Johnson Gaither, USDA Forest Service.

Our work

This project seeks first to evaluate the impact of the UPHPA on both the number and rate of partition sales and on the actors involved in these sales in Georgia and Alabama. The project will assess court-level impressions of how the act has worked  to influence partition by sale versus partition in kind (or other means) in Georgia and Alabama. We will also assess the frequency and impact of heirs’ property in Kentucky – a state that has not adopted the UPHPA. In Kentucky, we hope to communicate our findings on the nature and impact of heirs’ property to catalyze public conversation about the UPHPA.

Project collaborators  

The project is directed by LiKENeer Megan White in collaboration with co-Principal Investigators, Dr. Cassandra Johnson Gaither (Social Scientist, U.S. Forest Service) and Dr. Betsy Taylor (LiKEN Executive Director). This project spans across several communities and requires expertise in multiple areas. The core advisory group, made up of Mary Cromer (Appalachian Citizens’ Law Center), Joe Childers (Childers & Baxter, PLLC), Brady Deaton (Univ of Guelph), Dr. Aaron Guest (Arizona State Univ), and Putnam LaBarre (Oscar P. LaBarre LLC), provide legal and methodological expertise. Advisors on other targeted areas of the project include Marty Newell (Center for Rural Strategies), Dr. Simona Perry (c.a.s.e. Consulting Services), Dr. Karen Rignall (UnivKY), Sarah Stein (Federal Reserve of Atlanta), and Dr. Robert Zabawa (Tuskegee University). We will be working collaboratively with the Appalachian Land Study collective.

Contact for more information…

We welcome your suggestions and hope that if you are interested in learning more about this project you will contact Megan White, mwhite@likenknowledge.org, or visit the LiKEN website www.likenknowledge.org. If you are an heirs’ property owner in any of the counties listed above, you may assist this research by agreeing to an interview with one of our researchers, or by making and sharing your own photographs and video recordings.

Watch for more publications from us!

We will regularly produce educational materials about heirs’ property in general, and our findings in particular — on LiKEN’s new “Popular Education page”.  Please stay tuned for upcoming webinars, issue briefings, research reports, infographics, etc.

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This research was supported by funds from the Socially Disadvantaged Farmers and Ranchers Policy Research Center.

References cited

Presser, Lizzie.“Their Family Bought Land One Generation After Slavery”. ProPublica. July 15, 2019 https://features.propublica.org/black-land-loss/heirs-property-rights-why-black-families-lose-land-south/. Accessed Nov. 14, 2020

Johnson Gaither, Cassandra