New Property Act Helps Black Landowners in Arkansas Protect Inherited Land
With the passing of the 1866 Southern Homestead Act, many Black Americans became property owners for the first time. Today, 155 years later, the descendants of those original landowners are slowly losing their inherited land due to the lingering effects of the Jim Crow era.
In response, Arkansas has become the fifth state to enact the Uniform Partition of Heirs’ Property Act (UPHPA), a move that will protect the interests of these vulnerable landowners. It’s estimated that 60% of Black-owned land is categorized as heirs’ property – meaning the land is family-owned and passed down through the years without a will and often without a transfer of the deed.
This inherited land is shared equally amongst all the descendants of the original owner. For properties that have been passed down for four or five generations, this could mean 10, 20, or even 100 people have partial but equal ownership of the land. If any one of those individuals sells their land and the new owner wants to buy the rest of the property, that new owner can force a partition sale.
“Property owners with access to trust and estate attorneys can avoid the harsh consequences of a forced partition sale by structuring agreements, but low- to moderate-income heirs’ property owners may not have access to professional assistance and are vulnerable to predatory speculators,” said Henry English, director of the Small Farm Program at the University of Arkansas at Pine Bluff. “Most owners may not be aware that their property is in jeopardy until a partition action is underway.”
With an estimated 3.5 million acres of Black-owned land in the south, there is approximately $28 billion worth of heirs’ owned property that’s susceptible to partition sales. Land loss for these property owners translates into lost generational wealth and consequently fewer opportunities for upward mobility.
The Uniform Partition of Heirs Property Act (UPHPA) allows tenants-in common to buy out a co-owner who wants to sell their share of the land without having to put the entire property up for sale. Historically, heirs’ property law left tenants-in common vulnerable to having their property bought out from underneath them through partition sales which often occurred against the owner’s wishes.,
If the co-owners don’t want to, or can’t, complete the buyout, preference is given to a court ordered partition in kind instead of a sale. In this arrangement, the land in question would be divided amongst the remaining co-owners.
Finally, if a partition in kind is not enacted, the court will require the property to be sold at market value instead of an auction with a specified process for appraisal. All of these protections are in place to “preserve and maximize the wealth generated for the heirs’ property owners by the sale.”
A few states over in Alabama, Sen. Doug Jones’ 2018 Farm Bill provision gave heirs’ property owners in 18 states, including Arkansas, priority consideration for legal assistance that can help them protect their land for future generations.
For heirs’ property owners in Arkansas, Amy Pritchard, assistant professor of clinical education at the University of Arkansas at Little Rock William H. Bowen School of Law, suggests documenting ownership and planning for the future. She suggests:
- Prepare a will or a transfer of death deed for the next generation.
- Make sure your property taxes are paid on time.
- Use legal documents to create a family tree of the deeded land’s owners.
- Consider filling out an affidavit of heirship.
- Consolidate ownership when possible.
- Speak with a lawyer about creating a family LLC or a land trust.
- Track your payments and property updates, in the event of a partition sale you may be entitled to a larger share of the proceeds.
Arkansas heirs’ property owners can find additional resources for assistance through the Center for Agriculture and Food Systems’ Farmland Access Legal Toolkit and through the Keeping it in the Family (KIITF) project run by the University of Arkansas at Pine Bluff.