Equal Justice Society News - Newsletter Summer 2007 - Fall Symposium on the Impact of Prop 209

Editors' 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.

Thomas 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.

In 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.

In 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.

According 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.

These 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.

But 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.

Irrespective 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 ABA’s Section on Real Property, Probate and Trust.

The 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.

The 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 Press’s article on these sales can be found at theauthenticvoice.org.

Though 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.

In 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 (NCCUSL).

NCCUSL 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 ABA’s proposal to develop a Uniform Tenancy-in-Common Partition Act.

NCCUSL 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 act.

Typically, 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, NCCUSL’s Executive Director. He can be reached by e-mail at john.sebert.@nccusl.org and by telephone at (312) 915-0195.

The 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 family’s property on in Hilton Head, South Carolina. Information about this family can be found at www.landrich.org.

Given 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.

More 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 wynn_r@sbcglobal.net or by telephone at (608)332-4423.

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