American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.3

Commentary

Heir Property: A Constraint for Planners, an Opportunity for Communities The Legacy of Steve LarkinCraig H. Baab

Not much is known about Steve Larkin. He left South Carolina as a freed slave and migrated to Cuba, Alabama, where over time he accumulated upwards of 900 acres of the fertile Black Belt where Cuba is situated, just across the border from Meridian, Mississippi. He married and ap-parently had one child, Bryant. While hun-dreds of his living heirs know little of him, they today bear witness to the tangled legal ownership that land causes today.

Steve Larkin’s family heritage and continuing story will serve as a real-life framework for planners to better under-stand the constraints of heir property in their work, as well as the opportunity it presents to strengthen communities.

SCOPEThis discussion will present the phe-nomenon of “heir property” in the United States: what it is; how it impairs the property rights of low-wealth, of-ten African American families; how its clearer understanding will bene!t the work of the planning community; and the action planners and other com-munity leaders can take based on this knowledge. While the coverage of this subject here is necessarily limited, the importance of the subject was high-lighted by the panel, “The Impact of Heir Property on Local Government” presented during the April 2011 Ameri-can Planning Association (APA) Na-tional Planning Conference in Boston.

APA President Mitchell Silver, "#$%, opened the panel by reminding the au-dience of their ethical obligation to the

own an undivided fractional interest in the entire property—they all are owners of the same or common parcel of land.

What does this mean to the owners of heir property? Each owner’s fractional percentage interest of the entire property does not entitle that person to sell their percentage interest of the actual land. Rather, since that person and all of the other fractional owners have an undi-vided interest in the entire piece of land, no single owner has the right to sell the land without the agreement of all other owners. However, each owner is able to sell their percentage interest in the land.

Let’s begin with a simple example. Grandma and Grandpa owned 100 acres they purchased and for which they had a valid deed. They died in an accident, leaving four offspring. They died without a will, or intestate, in which case state law generally determines a decedent’s heirs-at-law to be a spouse, offspring, sisters and brothers, parents, and the off-spring of each of these categories.2

Furthermore, while state law and the courts will determine who inherits an interest in the 100 acres, none of those owners will have their name on a formal deed—the only name on a deed in the recorder of deeds of!ce is that of

Craig H. Baab is the Senior Fellow for Policy & Development at the Alabama Appleseed Center for Law & Justice, Inc. and the National Appleseed Heir Property Project Director. He holds a J.D. degree from American University’s Washington College of Law in Washington, D.C.

Comments or questions regarding this month’s Commentary? Discussion of “Heir Property: A Constraint for Planners, an Opportunity for Communities” can be found at: http://blogs.planning.org/policy/2011/09/26/pel-november-2011/

public at large. He observed that the plan-ning profession’s “primary obligation is to serve the public interest.” Such a weighty responsibility is realized by remaining conscious of the rights of others, being aware of the long-range consequences of present actions, preserving the integrity and heritage of the natural and built en-vironment. and including “ . . . those who lack formal organization or in&uence” in the development process.

Of particular signi!cance, Silver said, is principle A. 1. f. of the ethics code applicable to certi!ed planners:

We shall seek social justice by working to expand choice and opportunity for all persons, recognizing a special respon-sibility to plan for the needs of the dis-advantaged and to promote racial and economic integration. We shall urge the alteration of policies, institutions, and decisions that oppose such needs.1

This discussion will conclude with some thoughts about how heir property impacts the work of planners and what actions need to be undertaken.

WHAT IS HEIR PROPERTY AND WHY SHOULD PLANNERS CARE?The land Steve Larkin passed to his heirs upon his death is often referred to as heir property, heirs property, family land, or, in Maine, heirs-locked land. Technically, that land is tenancy-in-common land, the most widespread type of land ownership in the United States. The name refers to the fact that the tenants or owners of that land each

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American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.4Theoretically, all have their relative percentage responsibility to pay taxes and otherwise contribute to the upkeep of the property, though this rarely occurs in practice.

the grandparents, !led when they pur-chased the land in 1890. Consequently, none of today’s heirs at law in our ex-ample have “clear title” to the land—that is, none has the ability to identify a discrete parcel of the whole that they own exclusively, since they all own the entire parcel together.

The grandparents are the last re-corded deed owners, even though their descendants now have ownership rights in the land.

This is a shorthand look at how a fam-ily’s heir property is conveyed from one

As it stands today, the grandparents’ 100 acres is owned by 12 descendants, with their respective ownership interest ranging from 1/4 to 1/8 to 1/16 to 1/32 and !nally to 1/64. Despite those widely varying inter-ests, each has the same right as the others to live on and use the entire 100 acres—which is why their ownership interest is referred to as an “undivided fractional interest” in the entire 100 acres. Theo-retically, all have their relative percentage responsibility to pay taxes and otherwise contribute to the upkeep of the property, though this rarely occurs in practice.

dollar amount relative to the value of $100,000. A 1/4 interest would be worth $25,000; a 1/8 interest $12,500; a 1/16 share $6,250; a 1/32 interest $3,125, and a 1/64 share would be valued at $1,562.50. Thus, while somewhat coun-terintuitive, that heir owning a percent-age interest nominally worth $25,000 has the same right to use the entire 100 acres as that heir with an interest theo-retically valued at $1,562.50.

LARKIN FAMILYLet’s return to the Larkin family to take a closer look at owners of heir property.4

During the annual Larkin family reunion in Cuba, Alabama, on the third Sunday of August 2011, I was invited to attend and work with family members to determine, !rst, which family members own how much of the land, and second, what the members wish to do with their land. I was delighted at the family’s interest in clarifying who owned what, and family members hunched over the enlarged family tree, !lling in many of the blank spaces and correcting entries.

Earlier in the day, the family had held a private meeting to hear from various members who were concerned that some members living outside the Meridian–Cuba locale might be taking advantage of other family members. When the family was able to view even the incomplete family tree and assist in making it more accurate, they all began to better understand where they each stood. Some in attendance thought only a few family members had much owner-ship interest in the land, but when the actual tree was unveiled, their under-standing increased.

Some family members thought only a relatively small number of family members had an ownership interest, but preparing a detailed family tree (abso-lutely essential!) re&ected otherwise. Research to date has uncovered some 148 living descendants of Steve Larkin’s six grandchildren. The Larkin branch of the family tree thus shows only the descendants of one of the six offspring, who are the great-grandchildren of Steve Larkin.

If Steve Larkin is viewed as the !rst generation, to date the Alabama Apple-

generation to the next in the absence of valid wills.3 The purpose of this example is to demonstrate how quickly a fam-ily’s land can be dispersed among a large number of heirs-at-law with signi!cantly varied ownership percentages.

Grandma and Grandpa were careful stewards of their land and may have be-lieved, as has been the case with many families, that not having a will was a better means of protecting the land from those who would take the family land. Referring to our example, with so many family members owning such a varied percentage of interests, it would be dif!cult for a potential purchaser to satisfy each family member.

Finally, this example highlights the importance of actually undertaking the detailed preparation of a family tree in order to de!nitively determine who owns what, a prerequisite to any respon-sible disposition of the property. Often, a few family members who have kept track of the family history will decree which family members own what per-centage of the land. Such “determina-tions” have resulted in the actual break-ing up and distribution of a family’s land without clearly determining actual ownership. Such erroneous acts will haunt subsequent generations.

Let’s break down each percentage ownership group into a hypothetical

Sample family tree of Grandma and Grandpa, who purchased 100 deeded acres in 1890 shortly after their wedding and died without a will (interstate) in 1930 with four adult children. This exhibit re!ects the percentage interest in the entire 100 acres of each succeeding heir assuming no one has a will.

Source: Alabama Appleseed Center for Law and Justice, Inc.Dow

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American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.6

seed Center for Law & Justice, Inc. (Appleseed) has identi!ed a total of 148 living descendants, through the seventh generation. Of these, some 30 appear to be heirs-at-law whose current inheritable interests range from 1/6 to 1/48 to 1/72 to 1/144 of the entire 120 acres. However, as noted above, these interests are not directly transferable into cash, since if any individual wished to sell the entire property, or sell timber off the property, all would have to concur regardless of how small their interest.

Individual family members also had a clearer understanding that, for instance, if an owner of a 1/144 inter-est wished to sell her interest, even if she could !nd a family member or an outsider

interested in purchasing the land, the resulting revenue would be paltry. The result was that all family present began to better comprehend the bene!ts of retaining the land as a family asset. The question remained: How could the fam-ily best bene!t?

WEAKNESSES OF HEIR PROPERTY OWNERSHIP Families who own heir property are not able to bene!t from many of the attributes of property owner-ship. They also are at much

greater risk of losing all or part of their land through a variety

of means, legal and otherwise. Finally, heir property often becomes “blighted” property with all of the attendant prob-lems that status causes municipalities, revenue commissioners, and planners.

First, owners of heir property can-not exercise their full ownership rights to the land. Exhibit I re&ects 12 living heirs with interests varying from 1/4

to 1/64 of the entire parcel. If the 1/4 owner decides to build a house near a trout stream on the land, the 1/64 owner may object and say she wants to build her house there. Unless most of the family members are dispersed and not present to lodge their objections, all owners will have to agree on who can do what on the land, limiting the individual rights of each owner.

In practical terms, the owners will not be able to access the equity in the land by using the land as collateral for a loan or to obtain a mortgage. Since each owner has the right to use the entire parcel, all owners must agree in apply-ing for a bank loan, contract-ing to sell timber off the land, or selling some or all of the land. If all can agree on some

dispo-sition of the

land, or all will jointly apply for a loan, then the land’s

equity may become available. If the owners can’t make the land “work” for them, they most likely will not have the resources to improve the land, resulting in blight.

Hurricane Katrina exposed heir property as a fault line in property own-ership not caused by, but revealed in the wake of, the storm. Many federal rebuilding programs require that the bene!ciary home owner show clear title to their land as a condition of qualifying for such assistance as Federal Emergency Management Agency cash bene!ts, U.S. Department of Hous-ing and Urban Development (HUD) Community Development Block Grant

[H]eir property often becomes “blighted” property with all of the attendant problems that status causes municipalities, revenue commissioners, and planners.

The author pores over the Larkin family tree with several Larkin descendants.

All photos by Andrew Grace, Director, Documenting Justice, University of Alabama, Tuscaloosa

Source: Alabama Appleseed Center for Law and Justice, Inc.

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American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.7

(CDBG) disaster grants, and virtually all U.S. Department of Agriculture programs. Government rebuilding as-sistance is intended to help families rebuild for their own bene!t and not for the purpose of rebuilding in order to sell their land at a pro!t.

Quite simply, all of these programs require the owner to show clear title so that, if the owner violates the terms of the outright grant of taxpayer dollars, the government has a security interest to protect its !nancial investment in as-sisting the home owner. In our example, if the 1/64 owner lives in the house de-stroyed by Katrina, she will not qualify for these programs because the other 11 owners have not signed the agreement to receive the assistance. Since all 12 are responsible for the entire property, the government will not extend the as-sistance unless all 12 agree to be held liable for any default of the agreement.

Some 185,000 families suffered Ka-trina property damage in New Orleans and applied for the Road Home program (HUD CDBG grants). Of these, ap-proximately 25,000 families owned heir property, and to qualify for assistance, they had to obtain legal assistance to clear title to their land. Ultimately, under pressure for HUD to get funds to these families, an af!davit of heir property was approved, allowing the family member living on the property to receive the rebuilding funds. Unfortunately, most of that land remains heir property with clouded legal titles.

Tax Consequences How and when real property taxes are paid can have a big impact on a family’s ability to retain their historical land. If, for instance, the grandparents’ family does not know where the family mem-bers live and how to contact them in an emergency, they will be ill-equipped to respond quickly if the person paying the taxes dies, moves away, or just stops paying. The importance of paying prop-erty taxes is a given, but with heir prop-erty it is important and often dif!cult for family members to keep track of who is responsible for paying the taxes.

If the grandparents’ family members live throughout the United States, for

example, with some serving in Afghani-stan and one family member living near the land and paying taxes, the likelihood of a tax default is signi!cant. If the family member paying the taxes moves away and leaves no forwarding address, the other family members do not know the taxes are not being paid until they receive no-tice that the land is in tax default. Much heir property has been passed down through many generations, resulting in dozens or hundreds of owners (I met one woman outside of Selma, Alabama, who was one of 188 heirs to a small parcel).

Properties often go into tax default, which means some investor purchases the tax deed, pays off the past due taxes and any associated fees and interest, and waits for the property owner to pay off the back due taxes, fees, and interest and redeem the property.5 The more dif!cult problem with these tax defaults is that they begin an often slippery slope to los-ing the family homestead and heritage for the cost of back-due taxes.

Land Management and MythsMany heir property families are low-wealth, have moved off the land, and are widely dispersed around the country.6 Consequently, they are less able to care for their land even if they have access to the land’s equity to pay for the care. Thus, neighbors may encroach on the

land—trespass—and build a fence, barn, or house. If this happens and the family discovers the trespass and does nothing about it such as sue the trespasser, the family land can be lost after a statutory period through what is known as ad-verse possession.

Particularly if the family does not live on the land or have it cared for to avoid the above result, the family should have the land surveyed to make sure the boundaries have remained !rm. Surveys can be costly and often are avoided, to the detriment of the family.

My work throughout the Southeast has turned up too many cases to discuss where landowners have paid less at-tention to their ownership of their land then they do to the ownership of their car. Many have been told that, if a family member lives on the family land, pays the taxes, makes improvements to the land, and otherwise is a responsible landowner, that person will have superior ownership rights to other family members.

But, as we have seen, regardless of this person’s admirable efforts and the failure of other family members to contribute any money or effort, that owner has no more claim to the land’s bene!ts than the other family members because they each own an undivided interest in the whole. Furthermore, even when all members assist in paying taxes and keeping up the

[A]ll of these programs require the owner to show clear title so that, if the owner violates the terms of the outright grant of taxpayer dollars, the government has a security interest to protect its !nancial investment in assisting the home owner.

Larkin land, the subject of tangled legal ownership.

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American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.8“Heirs property” is de!ned as tenancy-in-common real property where there is no written agreement among the cotenants governing the partition of the land.

land, and share in any rental or other in-come from the land, most of these trans-actions are not written down.

It is generally the law that any transac-tion concerning real property has little legal signi!cance if not in writing, even (particularly!) among family members. Such absence of written records may not have an immediate consequence, but may in subsequent generations when family memories and stories have been forgotten.

Forced Land SalesEven where a family has avoided the above pitfalls and has encountered no problems owning heir property, a big problem can arise. Often, a family’s unoccupied rural land sits on the out-side boundary of the local community and is, in fact, sitting in the path of the proposed economic expansion of the community.

Now enters a smart and highly ethical land speculator whose business is to pur-chase properties currently assessed at a low level with the expectation that the land’s value will appreciate suf!ciently to gener-ate a nice pro!t for her down the road. She does her research and determines that the grandparents’ 100 acres has a current low assessment (from the tax records) and ap-pears to be a sound investment.

For the purpose of our discussion here, we assume this investor is a highly regarded and ethical investor. When dealing with investment property the world is !lled with speculators with less than sterling credentials, and that often is the case with heir property. However, let’s not hide behind the convenient stereotype of the unscrupulous investor in order to make a point.

Our speculator, for instance, identi-!es one of the 1/64 owners in our ex-ample and offers to purchase that family member’s interest. Such owners have moved away from the land and do not even know they retain an ownership interest. They gladly sell their interest, usually for a modest sum. Once sold to the speculator, she then stands in the shoes of the family member and has the same ownership rights as the other 11 members in our example.

Her next step is to !le a lawsuit in a local court for partition of the property,

which means she wants the entire par-cel sold so that she can purchase it.

Now, such partition suits in many states require by state law and judicial decisions to be a request for “parti-tion in kind,” which means the person bringing the lawsuit wants the land to be physically divided so that all parties end up with a certain piece of the land, the actual dirt. In practice, such suits are !led and the plaintiff includes in the petition the assertion that the land cannot be divided in kind, and that the only equitable response is to order the entire parcel sold.

The law views land as a strange bird. It is axiomatic that no two parcels of land are just the same, that there always will be some identi!able differences between parcel A and parcel B. Courts often !nd it time-consuming and dif!cult to deter-mine the most equitable means of divid-ing up the dirt in a petition to partition in kind. Unless the parties to such an action can agree among themselves who should get which actual parcels, a rare occur-rence, the court almost always will !nd that the land cannot be divided in kind and will order the land sold.

The usual outcome, and particularly in cases where the family defendants have neither money nor legal counsel, is that the land is sold on the courthouse steps for a fraction of the appraised value of the land. The defendant family members have lost their cultural and family heritage against their wishes, they will most likely receive pennies on the dollar of the value of the land, and, in Alabama, when the defendant fam-ily members do not have legal counsel, they will have the privilege of contrib-uting to the attorney fees of the prevail-ing plaintiff.

Such partition actions hardly are in the minds of most heir property own-ers, who are often poor. Yet, absent a concerted effort of families to prepare a family tree and keep track of all fam-ily members in protecting their family lands, they will lose that land. In the past 60 years, for instance, some 90-plus percent of African American farmland in the United States has been “lost,” an indeterminable amount of which has been lost to such partition actions.7

RESPONSE TO FORCED SALES: UNIFORM PARTITION OF HEIRS PROPERTY ACTThe amount of heir property lost through forced partition sales is unknown. How-ever, the often one-sided process of these forced sales in many states, fashioned to favor the petitioning plaintiff, has given rise to a proposed uniform approach to improve various aspects of the process and assist low-wealth people in retaining their family heritage.

In 2005 the Land Loss Prevention Project of the American Bar Associa-tion’s Real Property, Trust and Estate Law Section, in concert with the Heirs Property Retention Coalition, asked that this issue be studied by the Na-tional Conference of Commissioners on Uniform State Laws (ULC). The ULC agreed and established a drafting com-mittee chaired by Robert McCurley, head of the Alabama Law Institute, and named Prof. Thomas Mitchell as the reporter.8

Three years of intensive deliberation by the committee concluded in July 2010 when the ULC unanimously ap-proved the Uniform Partition of Heirs Property Act (Act) for submission to the states. The Act does not replace current state partition laws, nor does it limit the !ling of such partition actions. Rather, the Act provides a statutory de!nition of “heirs property,” which previously had been a colloquial reference to family land conveyed intestate. The Act also establishes a more organized hierarchy of remedies in a partition action.

“Heirs property”9 is de!ned as tenancy-in-common real property where there is no written agreement among the cotenants governing the partition of the land. One or more of the cotenants must have acquired the land from a living or deceased relative, and 20 percent or more of the interests are owned by related cote-nants; 20 percent or more of the interests are owned by an individual who acquired them from a relative; or 20 percent or more of the cotenants are related.

If a court in which a partition action has been !led determines the above de!-nition does not apply, then the Act does not apply. However, if all of the cotenants agree that the terms of the Act should ap-ply, the court must follow their wishes.

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One of the most dif!cult problems for families to overcome when faced with a partition suit is that they often don’t know such a suit has even been !led. Most jurisdictions, in these and many other lawsuits, simply require that in order to give notice to all defendants, such notice must appear for a number of consecutive weeks in a newspaper of general circulation. In the age of tweets, this requirement appears quite medieval.10 Thus, the Act makes modest progress by requiring that the property

land is heir property it must !rst inform those parties to the action that did not ask that the land be sold (usually the de-fendant family members) that they have the right to purchase the interests of the party seeking the sale. This is an impor-tant protection that levels the playing !eld for low-wealth families.

Previously, defendant family mem-bers needed to be prepared to enter into a bidding war with the petitioner in order to retain their ownership inter-ests. If, for instance, the land had a fair

considerations in weighing whether to order a division in kind or a sale. This is an important step forward for low-wealth families as well as city planners, historic preservation commissions, and others.

No single consideration is to be de-terminative, but all are to be weighed as a whole by the court in determining whether partition in kind “would result in [great] [manifest] prejudice to the cotenants as a group.” The enumerated considerations include various economic tests; evidence of the length of occu-pancy of the family; the sentimental, ancestral, or other unique value of the land to the cotenant; the degree of likely harm to a cotenant if unable to continue the current use of the property; the degree to which cotenants have contrib-uted their pro rata share of the taxes and other expenses of upkeep of the land; and any other relevant factor.

This “totality of the circumstances” list of considerations allows localities in-terested in preserving ancestral and his-torical lands to assist cotenants defend-ing against a forced sale of their land.

If the court, following this analysis, determines that the land cannot be di-vided in kind, it shall order a partition by sale unless none of the cotenants had requested such a sale. In that situation, the court shall dismiss the action.

The last option is that the court shall order an open-market sale with a broker agreed to by the parties or appointed by the court. If an alternative form of sale, such as by sealed bid or auction, would be economically of greater bene!t to the co-tenants as a whole, the court may so order.

One purpose of this package of re-forms is to assist the court in protecting the interests of low-wealth cotenants in a manner that still protects the valid interests of petitioning cotenants. In particular, it will avoid the uniformly abusive but lawful practice of permit-ting a petitioner owning, for instance, a 1/64 interest in a parcel from forcing the sale of the entire parcel against the wishes of all other cotenants.

In 2011 Nevada was the !rst state to adopt the Act, and a number of other states are preparing to consider it in 2012. The improvements the Act puts

American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.9One purpose of this package of reforms is to assist the court in protecting the interests of low-wealth cotenants in a manner that still protects the valid interests of petitioning cotenants.

market value of $100,000, that is the amount the family had to be prepared to spend, even if the petitioner’s invest-ment was only $1,000. Such families almost never could raise such amounts.

Under the Act, and the above ex-ample, the defendant family members would only have to come up with the petitioner’s $1,000 investment, and the lawsuit would conclude.

If this “buy-out” option is not exer-cised, the court’s next step is to direct that the land be divided in kind—that the parties decide how they will divide up the actual parcels of dirt. Impor-tantly, the court is required to review a number of economic and noneconomic

The author consults with Lillie Maude Larkin, the oldest living direct Larkin heir.

in question actually be posted with no-tice of the lawsuit and its parties.

One new element that would apply uniformly is that, generally, the court would appoint a disinterested real es-tate appraiser to determine the land’s fair market value unless the parties all agree on some value. The court may make its own determination if the cost of the appraisal is in excess of the land’s likely value. This determination will govern various steps in the rest of the process so that all cotenants are relying upon the same set of facts.

The Act’s key provisions set a hierar-chy of remedies that a court must follow. Thus, if the court determines that the

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American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.10What Calhoun County has taught us is that “economic development” can mean simply taking advantage of existing assets—such as 771 parcels of heir property.

1. Alabama Appleseed Center for Law & Justice, Inc., 309 N. Hull St., Montgomery, AL 36104, 334-263-0086. www.alabamaappleseed.org. Craig H. Baab, National Heir Property Project Director, can be reached at craig.baab@alabamaappleseed.org. Additional resources not on the website include videos of the February 2011 panel presentation at the American Bar Association Atlanta meeting and the July 2011 panel presentation at the Alabama State Bar Annual Meeting; PowerPoint presentations; comparisons of 20 state laws with the proposed Uniform Partition of Heirs Property Act; and a Manual to Clear Real Property Title, prepared for use in Alabama but that can serve as a useful model for other states. See also the online resources of Georgia Appleseed (Crystal Chastain-Baker, Project Director); Louisiana Appleseed (Christy Kane, Executive Director and pro bono expert Malcolm Meyer of the law !rm Adams and Reese); Texas Appleseed (Maddie Sloan); South Carolina Appleseed (Sue Berkowitz, Executive Director); and the national Appleseed Foundation in Washington, D.C. (Betsy Cavendish, Executive Director).

2. Law review articles and other scholarly work of these nationally recognized experts: Prof. Thomas Mitchell, University of Wisconsin

in place only affect the relatively small number of heir property situations that are subject to partition actions. However, these are important cases pro-tecting ancestral family lands and low-wealth farmsteads, and planners around the country would be well advised to encourage their states to adopt the Act.

OVERCOMING PLANNING CONSTRAINTS, OPTIMIZING OPPORTUNITIESThe story of Steve Larkin and his heirs has only focused on one family in Ala-bama’s Black Belt and the challenges that family might have in accessing the value of their family heritage. But the Larkins’ land represents a challenge usually outside the experience of most planners thus far. The insights to be learned from this family’s experience can open neighborhoods in rural and ur-ban neighborhoods alike, reduce blight, and generate greater tax revenues.

Alabama Appleseed undertook re-search into how to better understand the degree of heir property ownership and its impact on municipalities. While important academic studies over the years variously have estimated such ownership among rural, often African American communities in the Southeast in excess of 30 percent of the land total, little empirical research has substanti-

ated those estimates. Revenue com-missioners in Alabama’s Pickens and Calhoun counties helped Appleseed to better undestand the practical impact of heir property in their counties.

In Calhoun County, for instance, the revenue commissioner generated a data !le of some 45,000 residential tax !les. By sorting these !les using such suf!xes to the taxpayer’s name as “et al.,” “heirs of,” “estate of,” and similar terms sug-gesting multiple cotenants, a resulting subset of 771 parcels was generated. The results, even though barely 1.5 percent of the total—far below the often-estimated 30-plus percent—was eye-popping.

The 771 parcels totaled over 11,000 acres, although the vast majority of the parcels were of a few acres or very small plots. However, the tax-appraised value of the land and improvements exceeded $31 million.

Planners and economists working to strengthen the prospects for local economic development usually look to enticing new businesses to relocate, for developers to build new houses, and for local businesses to invest in their own expansion. What Calhoun County has taught us is that “economic develop-ment” can mean simply taking advan-tage of existing assets—such as 771 parcels of heir property.

Law School and reporter of the committee that drafted the Uniform Partition of Heirs Property Act; Prof. Robert Zabawa, George Washington Carver Agricultural Experiment Station, Tuskegee University; Prof. Conner Bailey, Department of Agricultural Economics & Rural Sociology, College of Agricul-ture, Auburn University, and Janice Dyer, research associate, with substantial resources at http://www.ag.auburn.edu/agec/heirproperty; Prof. Phyllis Craig-Taylor; the multimember Heirs Property Retention Coalition, John Pollock, facilitator, whose website also provides a wealth of resources, including numerous links to other organizations and experts at http:// www.southerncoalition.org.

3. There are numerous press reports about low-income, often African American landowners losing their land through a vari-ety of abusive or simply illegal acts. The three-part Associated Press series Torn From the Land is a good introduction. Other recent reports by National Public Radio and other outlets can be located by online searches.

First, taken as a whole, that $31 mil-lion worth of wealth is not working for the community, much less the owners. That is $31 million in land no bank can include in its mortgage portfolio. While that land is generating tax revenue for the county, it is not generating nearly what it could if the owners could access the land’s equity to improve it. Thus, if some of the landowners could get at their equity and improve their land, the resulting tax appraisal would increase commensurate with the improvements and generate increased tax revenues. Tax revenues would increase without an unpopular tax rate increase.

Second, as Katrina and other disasters are teaching us, storm victims cannot qualify for various rebuilding bene!ts if they live on heir property. Apart from the personal impact on the families most in need after a storm, one unintended con-sequence is that the resulting properties, if not rebuilt, become the very “blighted properties” now burdening so many communities.

The otherwise commendable na-tional initiative to rid our communities of blight might now be informed by the hidden reality that many of these parcels are likely to be heir property whose owners would like to rebuild af-ter a disaster, but who have neither the

ADDITIONAL RESOURCES

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personal resources, the access to their land’s equity, or, tragically, the use of federal rebuilding funds.

Third, as federal court recently held in the successful lawsuit brought by the New Orleans Fair Housing Action Center, decisions by federal agencies in allocating disaster aid were racially discriminatory. In low-wealth, African American neigh-borhoods, the damage to a home and the related rebuilding bene!t was based on the pre-storm value of the property, which obviously was low. As noted above, much of this land is heir property. The result-ing grants were substantially below the actual cost of rebuilding, and the resulting structure very well might be added to the blighted category.

The pre-storm value of other prop-erties in higher wealth neighborhoods with overwhelmingly Caucasian popula-tions generated disproportionally higher rebuilding grants, generally permitting a complete renovation of the damaged property. This and other lessons from Ka-trina, even if exposed after lengthy court determinations, will help us better under-stand that blight in a number of postdi-saster situations is avoidable. The result is that families owning these heir properties might be assisted in keeping their land and returning it to the kind of attractive properties all communities seek.

There are most likely many other areas where a better understanding of the extent of heir property ownership in a community will become an impor-tant tool in the planner’s toolkit. For instance, urban community leaders in a large city have been in discussions with the heirs of one of the community’s oldest families to preserve the 400-acre family tract and include a heritage cen-ter, green space, and public vegetable garden. This project has been in the works for many years pending the death of the family elders and has long been viewed as an important element in re-invigorating the city. While most of the living heirs of this piece of heir property have long advocated this plan, some of the older heirs and their offspring con-tinue to refuse to sign off on the plan.

Thus, a long-projected plan for the conversion into public space of a fam-ily asset is thwarted by a few resistant

American Planning AssociationPlanning & Environmental Law

November 2011 Vol. 63, No. 11 I p.11

ENDNOTES1. AICP Code of Ethics and Professional Conduct: “A. Principles to Which We Aspire 1. Our Responsibility to the Public.” Effective June 1, 2005, revised October 3, 2009.

2. This is a general statement of who inherits from an intestate estate, as most of those who inherit are these categories of heirs. State laws vary, but for the purpose of this article this generalization is used.

3. A validly executed and witnessed will, if not filed for probate within the statutorily prescribed time period, will have no effect as a matter of law. The result is the same as if the deceased had died without such a valid will. That said, since the period within which a will must be admitted to probate varies from one jurisdiction to the next (up to 10 years, for instance), any will discovered that has not been filed with the probate court should promptly be taken to a lawyer for advice and counsel.

4. The current family tree of selected branches of the Larkin fam-ily has been enlarged to three feet by four feet to be legible and, thus, is not reproducible here. Instead, one branch of that tree is reproduced. The entire family tree research was ably undertaken by Lindsay Nadeau and Michael Krombach, two law students from Samford University’s Cumberland School of Law, who interned with Alabama Appleseed in the summer of 2011. Their talent and assistance is gratefully acknowledged.

5. In Alabama there is a substantial incentive for investors to pur-chase delinquent tax deeds, because counties do not wish to hold on to these properties and prefer to receive some income from the delinquent properties. Purchasers of such deeds can earn 12 per-cent annually on their payment of the delinquent taxes until such time as the property owner redeems the tax deed. The Alabama State Legislature had before it in 2011 a bill to substantially reduce that rate of interest, but it did not receive favorable action.

6. See, generally, Heir Property: Scope of the Problem by Janice F. Dyer, available at http://www.ag.auburn.edu/agec/heirproperty.

7. Alabama Appleseed, with the pro bono assistance of John Baker of the Birmingham law firm of Lightfoot, Franklin and White, represented on appeal the defendant family members in the case of Jones v. Jones. The appellate court did not overturn the trial court’s determination that the 39 acres could not be divided in kind among the seven siblings, the land was sold, and the two elderly defendant brothers each received a few thousand dollars—and lost their only source of firewood with which to heat their rural homes.

8. Prof. Mitchell was the first African American reporter of a draft-ing committee in the 119-year history of the ULC. See the official website for a list of all committee members, an excellent survey of all state partition laws prepared by John Pollock, other research materials, successive drafts of the uniform act, the final draft as approved unanimously by the ULC and subsequently, by the American Bar Association, and summaries of the final act used to inform state legislatures considering the act. To date, Nevada has adopted the uniform act. See http://www.nccusl.org.

9. For unknown reasons, the Style Committee of the ULC determined to employ “heirs property” instead of the more grammatical “heirs’ property.”

10. A former afternoon newspaper in Tennessee, which ap-parently went out of business a number of years ago, was resurrected for the sole purpose of selling such legal notices at cheaper rates than the regular daily paper. While technically a paper of “general circulation,” the only readers are likely to be lawyers, paralegals, and very bored people, and not heir prop-erty owners who live in another state. While such requirements in the past were indeed geared to accomplish their intended purpose of providing notice to lawsuit defendants who all lived in that jurisdiction, retaining such a requirement now can hardly be understood as likely to provide notice to such persons.

family members. If the fact of this heir property had been much earlier known and understood by planners and other community leaders, strategies could have been put in place to work with all family members and not just those whose enthusiasm for the project masked the reality of bringing along other, hesitant family members.

The Pigford v. Glickman case, where many black farmers successfully sued the U.S. Department of Agriculture (USDA) for racial discrimination in the department’s agricultural lending programs, is another example where the future growth of rural communities has been made much more dif!cult by adverse federal practices related to heir property. Local planners in many of the rural areas where Pigford plaintiffs live might have projected levels of eco-nomic development based on assump-tions of how local farmers would be able to increase their crop production and expand their livestock herds contingent on USDA loans received. Many of the Pigford plaintiffs own heir property, and the lack of clear title was one reason why some loans were denied.

Stabilizing and revitalizing neighbor-hoods, implementing the recommenda-tions of Food Policy Councils, and pre-serving the buildings, land, and culture that are important pieces of local heritage all are key goals of many communities and can be furthered by local planners with keener insight into how these goals might be limited by heir property.

WHAT’S NEXT FOR THE LARKINS?In working with the 30 heirs-at-law to Steve Larkin’s 120-acre legacy, I have become increasingly aware that other branches of the Larkin family may own a total of nearly 900 acres—Steve Larkin’s original holdings. If all those branches can come together, they may !nd that, by combining the relatively modest parcels they each own into a single 900-acre tract, they may increase the economic bene!t to them all.

Will this happen? No one really knows, but the Larkins are working hard to protect their heritage and family wealth. The answers lie as much with the matriarch Lillie Maude, with her

1/6 interest, as with the sixth-generation holders of a 1/144 interest. When they all see the future of their family land and its bene!ts to their children, they surely will look to local planners to bring reality to their dreams.

Stabilizing and revitalizing neighborhoods, implementing the recommendations of Food Policy Councils, and preserving the buildings, land, and culture that are important pieces of local heritage . . . can be furthered by local planners with keener insight into how these goals might be limited by heir property.

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