Uniform Partition of Heirs’ Property Act

On November 17th, VES Land Trust, Black Family Land Trust, Piedmont Environmental Council, and Virginia United Land Trusts hosted Keeping Land in the Family, a webinar that reviewed what heirs’ property is, how you become an heir, what resources you and your family need to make the best decisions about your land, the basics of the new Uniform Partition of Heirs’ Property Act.

A recording of the webinar and additional resources are available on the Piedmont Environmental Council’s website.

Land is socially and economically valuable

Family owned land has many social, economic, and conservation benefits. It can be a family’s most valuable asset. However, land owned by multiple family members and generations is more at risk of being lost.

“Imagine if your family has lived on the same piece of property for a century or more, and all of the wealth you have accumulated is tied to the hard work and the sweat you have poured into its soil. Now imagine that in nearly an instant, because of a broken legal construct, that land and those generations worth of hard work vanishes out from underneath you,” Secretary of Agriculture and Forestry Betina Ring said in a Richmond Times-Dispatch article earlier this year.

Socially, land is valued by what it means to you and your family. You know the tree your grandchildren climbed and the dock they fished from, the place where your children were married, and where you gathered for the holidays. The land is part of your identity especially when it has been a part of the family for generations.

The economic value of land is not just in what it might sell for. Land can also be mortgaged and even generate income through conservation practices. For example, landowners can qualify for programs through the Natural Resource Conservation Service that pay for waterfront buffers and pollinator or Black Duck habitat. Land can also generate wealth when placed under a conservation easement. Some conservation organizations will pay for the easement while others like VES Land Trust accept the easement as a donation, which generates tax benefits for the landowner. Land can also provide financial benefits through agriculture and forestry.

On the Eastern Shore, many families have lived on the same land for generations building wealth and memories. Some of these families can trace ownership back to colonial times. But there is another story. One where families have lost their land, the wealth, and part of their identity with it.

Land owned in common

Heirs’ property refers to land owned by multiple people, each who inherited their share. An heir may inherit a share by being named in a will or through succession laws (for example children inheriting from a parent). Heirs’ may include those who have never even visited the land, worked it, or paid taxes on it. Heirs’ inherit a share of the whole property and rights to the whole property. Inherited rights include the right to transfer their share or try to divide the property through a “partition action.” Someone outside the family, such as a developer, can purchase a share of the property and force a sale or physical division. As a result, heirs’ property is at higher risk of being sold or divided against the will of the remaining owners.

In these situations, those living on the land may be evicted and heirs often receive less than the land is worth. Heirs lose the social value, on the sale price, and the income and wealth potential in the property. As the number of heirs increases over generations, ownership and decisions become more dynamic and the chance of losing the land increases. In addition, if heirs lack clear title as may be the case with land transferred without a will, they may not be able to access income generating programs and loans including disaster assistance.

Heirs’ property disproportionately affects lower- and middle-income families without access to affordable legal services. In many cases, heirs’ property occurs when there is no will in place and the land is held in common by all. While heirs’ property can affect anyone, African Americans are more than twice as likely to not have a will. Heirs’ property continues to be a leading cause of Black involuntary land loss. Black-owned farms numbered more than 900,000 in 1920, 14% of total farms. This number dropped by 95% over the following 50 years. Researchers at Auburn and Tuskegee Universities estimate that there are between 150,000 to 175,000 acres of heirs’ property owned by people of any race or ethnicity in the southside counties in Virginia and that this property conservatively is valued at $650 million.

Uniform Partition of Heirs’ Property Act

The Virginia Legislature unanimously passed the Uniform Partition of Heirs’ Property Act (UPHPA) this year. Virginia was the 16th state to adopt the legislation. The Black Family Land Trust, Virginia United Land Trusts, and member groups including Virginia Eastern Shore Land Trust worked for more than a year to gain support for and pass the law.

The UPHPA, developed by the Uniform Law Commission, addresses the partition action abuses that led to involuntary property loss by many Americans. However, it also preserves a co-owner’s right to sell their interest in inherited real estate, while ensuring that other co-owners have due process, including notice, appraisal, and right of first refusal, to prevent a forced sale. The court can order a partition in kind (physically dividing the property equitably) or a reasonable sale for a fair market price if the co-owners do not exercise their right to purchase property from the seller.

“We have more work to do, but I am proud that Virginia has made retaining family-owned farm and forestland a top priority. By working collaboratively, we have been able to find creative solutions to complex issues. We can do even more to keep land intact, in farm and forestland — and in the family — by working together,” Ring says in the closing lines of the same Richmond Times-Dispatch article.

*Header photo courtesy of Black Family Land Trust.