Promising African American Landownership Initiatives
Professor Thomas Mitchell, University of Wisconsin Law School
note: Equal Justice Society is working to address racial discrimination and the
various forms of bias that continue to have devastating impacts on members of
our society. In issues past, we have discussed our intent doctrine efforts to
eliminate legal barriers to redress for harms due to discrimination or our efforts
to increase equal opportunities in employment, education and contracting. In this
issue, we also highlight another area where racism is pervasive and continues
to deprive members of society of their homes and land that has often been in their
families for generations.
Mitchell, a law professor at the University of Wisconsin School of Law and a participant
in EJS strategic workshops to address legal barriers to redress for discrimination,
has conducted extensive research and written several articles raising the deeply
troubling issue of Black land loss (see
past EJS article). Racism, classism and exploitation of state property laws
have deprived African Americans, low-income Whites and Native Americans of their
rightfully owned property.
recent years, the African-American homeownership record has been mixed. African
American homeownership rates have improved, but reports indicate that a majority
of African American families who are financing their homes have subprime loans.
An alarming number of these homeowners are now facing foreclosure.
contrast to this mixed homeownership record, the status of African American rural
landowners over the past fifty years has appeared at times to be nothing but a
steady drumbeat of bad news. Report after report during this period has highlighted
the declining numbers of African American landowners and the declining number
of acres under African American landownership.
to data from the U.S. Agricultural Census, 1920 represented the high-water mark
for African American, agricultural land ownership as approximately 230,000 African
Americans owned between 16 and 19 million acres of land that they farmed. In contrast,
the 2002 agricultural census reported that there were slightly more than 26,000
black farm operators who owned about 2.2 million acres of farmland.
discouraging trends have lead many, including some in the media who understand
that racism has played a significant role in land loss, to conclude that nothing
can be done to stem the tide of African American land loss. Some have indicated
that the most that can be done is to document the experiences of the last few
African American landowners for the sake of posterity.
more is at stake than two million acres of land. Another more comprehensive survey
that the United States Department of Agriculture conducted in the late 1990s demonstrated
that in fact African Americans owned at least 7,629,000 acres of agricultural
land that was valued at nearly $14.5 billion dollars. Even this figure undercounts
the amount of African American landholdings as there is much more land under African
American landownership than this study the Agricultural Economics and Land
Ownership Survey counted. For example, agricultural land was not counted
if it was not in production and beachfront property and other types of land that
are not agricultural in nature were also not counted.
of the type of land involved, a real window of opportunity has opened for those
interested in stabilizing African American landownership. After the Associated
Press published an award-winning series on African American land loss in 2001
entitled Torn From The Land, the American Bar Association decided to form a new
task force called the Property Preservation Task Force (PPTF) that is a task force
of the ABAs Section on Real Property, Probate and Trust.
ABA was primarily motivated to establish the PPTF after publication of one of
the articles in the AP series that discussed alleged abuses of state laws called
partition laws that permit tenancy in common property, or "heirs property"
as it is more commonly referred to within the African American community, to be
forcibly sold at public auction. Given that a large percentage of African American
families who own land own it under the tenancy-in-common structure, these landholdings
are particularly vulnerable.
tenancy-in-common is one of the most unstable forms of group ownership that the
law of real property recognizes. Under this ownership structure, just one person
in the ownership group may initiate a partition action that can result in a judge
ordering a forced sale, called a partition sale, even if the property is completely
paid off. Such a public auction of the property can be ordered as well despite
the fact that the person seeking such a sale owns just a one percent stake in
the property. Such sales have also been ordered irrespective of whether there
are others in the family or ownership group who are living on or working on the
property and who try to resist the sale. The Associated Presss article on
these sales can be found at theauthenticvoice.org.
the picture of the heirs property problem has often had a rural African
American face, other communities have experienced real problems with heirs
property. Low-income Whites in places like eastern Kentucky in Appalachia have
lost land through partition sales. Native Americans who own land that is not held
in trust status are subject to state partition laws. Recently it has come to light
that thousands of African American families in post-Katrina New Orleans who own
heirs property are at risk of having their property forcibly sold.
late 2006, the Property Preservation Task Force developed a proposal to make significant
changes to state partition laws in an effort to make the laws more equitable and
to stabilize ownership under the tenancy in common. This proposal has been accepted
by the Chicago-based National Conference of Commissioners on Uniform State Laws
is the leading legal organization in the United States in terms of its work in
developing proposed uniform or model state laws that it then actively works to
have adopted at the state level all across the country. NCCUSL receives a large
number of proposals to develop model or uniform laws in one area of the law or
another; however, NCCUSL ends up rejecting a number of these proposals. Therefore,
it is quite significant that NCCUSL has accepted the ABAs proposal to develop
a Uniform Tenancy-in-Common Partition Act.
devotes a minimum of two years to developing a model or uniform law. During this
period, a drafting committee will meet several times in order to develop a proposed
act. NCCUSL leadership welcomes people and organizations who want to participate
in the process to be observers. Observers are entitled to receive the minutes
from the meetings of the drafting committee. More importantly, observers can attend
the meetings in person and actively participate in the process of drafting a uniform
a number of observers participate in person and these observers represent a range
of views on any model or uniform act that is being considered. Therefore, if you
have concerns about partition sales of heirs property and would like to
participate in developing the uniform act, please contact Mr. John Sebert, NCCUSLs
Executive Director. He can be reached by e-mail at john.sebert.@nccusl.org
and by telephone at (312) 915-0195.
second exciting initiative that has also developed in the past two years to address
many of the problems confronting low-income and minority landowners is called
the Land Rich initiative that is being led by an organization called Asset Builders
of America. This organization and its partners recognize that many low-income
and minority landowners are cash poor, but land rich. The properties
in question often represent a de facto liability for their owners in many cases
because they generate no income but require substantial funds to maintain. However,
the families and communities who own such properties could be using them in a
way that would generate and leverage real wealth. In important ways, the Land
Rich initiative is seeking to take to scale the experience of the heirs of Matthew
Jones as it relates to the familys property on in Hilton Head, South Carolina.
Information about this family can be found at www.landrich.org.
the breadth of issues involved, mediators, community organizers, lawyers, land
use planners, environmentalists, and real estate development professionals are
exploring the feasibility of working together at a number of Land Rich Territories
to develop demonstration sites that could serve as a model for others who are
similarly situated. Asset Builders of America is working with the University of
Wisconsin Law School, the University of North Carolina School of Law's Center
for Civil Rights, the Lawyers' Committee for Civil Rights Under Law, and several
community-based organizations in the South in an effort to develop a Property
Preservation Clinic that would work with individual families and communities.
information about the Land Rich initiative can be found at www.landrich.org.
You can also contact Robert Wynn, an attorney who is a director of Asset Builders
of America and who is directing the Land Rich project. He can be contacted by
e-mail at email@example.com or by
telephone at (608)332-4423.
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