Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:37] Speaker B: Hello everyone, My name is mia Robertson. I'm a 1L at Harvard Law School. And today I'm so excited to be joined by an esteemed guest to talk about heirs property and the access to justice issues presented by it. So Dr. Woods, can you please introduce yourself to us and just tell us a little bit about your work?
[00:00:55] Speaker C: Yeah. Thank you so much, Mia for the invitation and having me on. As you said, My name is Dr. Cara Woods. I am the research analyst at the National Policy Research center that's located at Alcorn State University.
[00:01:08] Speaker B: Great.
So heirs property is one of the leading causes of involuntary land loss today and it presents a host of access to justice issues for the people affected by it. So can you just tell our listeners what is heirs property, how does it come to be, and what groups of people are most affected by it, if any?
[00:01:28] Speaker C: Yeah, so I'll, I'll give a little background about myself and the policy center as well and how we get into the heirs property game. So I am a graduate of Tuskegee University. That's where I got my graduate degree. And my dissertation topic actually was surrounded about heirs property and how look at it two ways. Heirs property as it relates to civic participation and then also heirs property as it relates to historically social institutions. And in this case it was black churches and schools that were in Macon county, which is where Tuskegee is housed. So then when I went over and graduated, I went to the policy center and one of our research priorities is land loss. And as you just stated, heirs property is one of the leading causes of land loss, farmers and non farmers. And so I've been able to to contribute more and more to the academy academia, part of heirs property for a while now. And it, it's been very interesting to see the ebb and flow of it. To get back to your question about what is heirs property? Heirs property is when a parcel or a piece of property, essentially whoever's name is on the deed is deceased and so that person is no longer living. However, their heirs co own the property and so that's how it really becomes heirs property. They co own it in undivided shares according to where they are in the lineage from the deceased person whose name is on the deed. Also heirs property might be created when the person doesn't have a will or the will isn't probated or administered correctly. It also can be created when somebody does have a will and they do all my children equally.
And as far as property goes, and we always say where, where is your unequal share? Is it the part by the swamp? Is it the part by the road? Is it the part in the kitchen sink? You're not able to know. And so that's where a lot of issues come up.
[00:03:37] Speaker B: Yeah, it's so interesting because it's. Whenever we think about access to justice issues, a lot of times we're thinking about what are the barriers that people are facing today. And that's definitely a question where there's property. But what, what's really interesting, I think to think about is the access to justice. Justice issues in a lot of ways present decades and decades ago. Right. Whenever the deceased person died, maybe without a will or without a proper will. And so there's so many interesting questions here. Can you also tell us who, who is most affected by this problem? And are there any regions of the country that where we see a disproportionate amount of heirs property?
[00:04:10] Speaker C: Yeah. So historically I will say that a lot of, like I say academic journal articles really concentrated with 1890 land grant HBCUs. They were the forefront along with a lot of community based organizations like the Federation of Southern Cooperatives. They were the forefront of really understanding this issue. And so they were able to find that especially in black Americans, formerly enslaved Americans, and also Americans who their land was either taken, stolen, as far as Native Americans, it really disproportionately affects them.
However, it is not solely a racial issue. And I say this all the time. It's a class issue and an accessibility issue. You have hot pockets in Appalachia, Kentucky and West Virginia. You have hot pockets in Texas. You have hot pockets really across the black belt. Again, it's an access issue, it's a trust issue. And so it. But then at the end of the day, I also say this all the time. It is a human issue because people die every day. And it doesn't matter what nationality or whatever ethnicity or what background you're from. If you die without a will and you own some type of property, you essentially can create heirs. Property. No matter how much money you have or how much access or even understanding that you have. And so although the research will point you to one place, I would definitely say it's something that's secular. It can happen at any time because unfortunately death can happen at any time.
And if you're not prepared, then more and more heirs property is created every day.
[00:05:51] Speaker B: I think that's a really great and a unique perspective that you just presented. So, okay, so like you said, under heirs property, one single of person or one single parcel of land can be owned by dozens and sometimes we've seen cases of hundreds of people owning this same parcel of land. So can you tell us just what barriers does that fragmentation have in practice? Like why is that a problem?
[00:06:14] Speaker C: Yeah, definitely. So the thing about heirs property, a lot of times we try to make it into a rural associated event, but it's definitely urban as well. And as I said, when you're thinking about undivided interest and you're thinking about land, think about that. Even worse than a brownstone. Who, who gets the, the bedroom, he who gets, like I said, the kitchen. It becomes a really big issue as well. When you're trying to improve anything on the property, you can't have traditional mortgages, sometimes you can't insure the.
So it's really promoting intergenerational poverty, not intergenerational wealth. And you can't use it as equity. So you usually it is you are land rich or maybe house rich, but you're cash poor. And heirs property is one of those things where you continue to pay taxes. You usually improve it when you can, but it is not something that is usually a line of equity for anything. And then again, when it's co owned by so many people, who's going to be responsible for paying back the mortgage? Who's going to be saying I'm unwilling to put $8,000 up for a new roof when it's not insured. How do you delegate how much each person will pay on this home if not everyone lives there? It really becomes also a war of how things will get paid and who will get paid and if they will ever see any of their investment back.
[00:07:46] Speaker B: That's such an interesting point that you raised like the collective action problem part of it. And I imagine too the heirs who actually choose to live on the property, they will feel an impressed obligation to be the ones picking that up if the others aren't. But yeah, like you mentioned, it's like I have all of the obligations of land ownership, but none of the benefits. I can't use this for, for a mortgage or to improve the land. So yeah, it sounds like an enormous problem.
So one purported solution to this fragmentation is a lawsuit called a partition action. So can you tell us what is a partition action? How does that work and what does it often mean in practice for families?
[00:08:24] Speaker C: Right. So a partition action, as I've said, you have an undivided interest and each heir has any right to use of the property, to improve the property and to sell their undivided interest of the property. And that's usually what happens in partition sales. You can sell your or gift your undivided interest inside the family, so making it less fragmented, or you can sell it outside the family. So this might be sold to maybe a developer or someone else who is eyeing the property.
What usually happens is that developer goes to several different heirs and purchases seven different fractions of the property. And so they will go to the judge and say, I want my partition in kind, which means I want to physically divide the property. As you may know, judges have a lot to do. And one thing that they are not trying to do is look at land maps and physically divide property. And so they put it up for partition. When that happens, the entire property is then up for sale.
And so again, that same developer or outside interest might then say, well, I'm going to go ahead and purchase the entire property. And that's usually what happens. And depending on what state you're in, what type of protections you have, that means that the entire property is not only lost to the family, but it's usually done at an unfair market price and it could be for sold for pennies on a dollar of what the actual property is worth.
[00:09:59] Speaker B: Yeah. So whenever the judge is sitting there thinking, okay, do I divide this property or do I just sell it at auction? Are they at least considering the question of, okay, some heirs live on this property or there's sentimental value in this property, or this has been in this family for a long time. Are they considering those things at all or is it really just like an administrability question?
[00:10:18] Speaker C: That's a great question. And like I said, it really depends on where you are. And so there has been policies and the have been enacted to help and really give some protections for heirs. Property owner. One of the key ones is the Uniform Heirs Property Partition Act. So the uphpa, so the Uniform Partition of Heirs Property Act. The, the issue with that is that it's not a federal law, it is a state enacted law. So it has to be introduced and enacted in each state and it's done A really great job to do that, but it is not enacted in all 50 states.
And so the UPHBA, like I said, gives protections to those properties that are in those states. And one of those is actually sentimental value. And so you can go to the judge and say, judge, my parents got married here, we raised all our children here. We, we got this land from so and so you can, and you can prove the sentimental value depending on the judge. It's not always, but depending on the judge, they might have some understanding to say that this land needs to continue in the, in the family. Or what also usually happens is they have a preference to partition in kind and so they will actually, like you say, get that landmark back land map out and then cut out the property so that way the family still gets a piece of the property. As you can imagine, this is much harder in urban settings. And some states, like New York, they have created their own kind of version of UPHPA 2.0 that gives even more protections to those who are living in New York, especially in rural New York, where we don't have per se acres to divide.
[00:12:11] Speaker B: Yeah, so it sounds like the stakes are pretty high in these actions. Right. If you can't show up and successfully argue against them, your property, your family property can just be sold at auction to anyone, to a developer, a third party or anything. So one would really hope that heirs would be able to show up to those actions and argue against them.
[00:12:32] Speaker A: Right.
[00:12:32] Speaker B: Have counsel and defend themselves and defend their property. So is that kind of what we see happening in practice? Are heirs often able to do that? Do they have access to legal help and the ability to really fully participate in those proceedings?
[00:12:47] Speaker C: Definitely depends. It depends. Again, it's an accessibility issue. Whether you have a well versed attorney who is well versed in this type of land law.
Lawyers have different specialties, just like doctors. And so you can't think that one lawyer is going to know things about heirs property and partition sales and the uphpa. And the same with judges, not all judges even are aware of the law. So it really depends on who you're able to find that is well versed in the subject. Another thing that unfortunately, like I said, it comes up that when you go through a partition proceeding you have a, and if you are protected by the act, the uphva, then you have a buyout round where you're able to, to buy out the third party.
However, like I said earlier, it is a cash low. Usually they're leveraged, cash poor. And so even in the buyout round the family is not able to secure the money to buy out that third party. And when you're in a state that doesn't have that protection in the same way you go to auction, the family tries to compete and usually it's, it ends with the land being lost.
[00:14:09] Speaker B: So let's say the land is lost, let's say the court orders an auction and the land is ultimately sold. So what happens next?
Do the heirs at least get a portion of those proceeds from their land?
[00:14:22] Speaker C: What happens if the property is in a state that does have the uphba then? Yes, so there is a the property gets fairly assessed by marketable value.
The heirs get paid according to their undivided interest. So some heirs get paid more than others according to their, like I said, lineage in the family.
And, and, and then unfortunately the land is lost. And that is what they get in states that do not have that protection, that they just lose the land.
[00:14:57] Speaker B: Wow, it sounds like the UPHPA is giving a lot of protection. It's almost jarring to hear that some states don't have it. So I'd also love to dive a little bit more into your research specifically. So I know that your research kind of reveals that some of these consequences are not strictly economic.
So can you tell us a little bit more about how Ayers property affects community engagement or voting for those who own it?
Yes.
[00:15:23] Speaker C: So I will say that this is research that I've done a while ago, so it's not the freshest thing on my brain. However, a colleague of mine and myself are preparing a paper that is going through reviews now to really get that research out there and what I was able to find, I looked at the voter participation in Aiken county for registered voters, non heir property owners and air property owners and looked at, like I said, their participation over the last 10 elections in city, state, federal, whatever that may be, and found that heir non heir property, so clear title property was more likely to participate in voting and AIR property had just a lower rate of voting. The tricky part is that because this was research that was done during my dissertation, I didn't get to ask why.
And so that's one of those things that I really still have answers with. We have a thought that maybe as AIR property owners, they don't think they're involved in what can be changed on their property because like I said, they're not able to use their property to the utmost need. We also think that maybe it might be a community issue. There are hot pockets of heirs property and so is it Is it because they have their own little haven that they're not necessarily thinking about the impact of what their vote might be?
Not sure. So that's, that's something that, like I said, has really been interesting to find out, but not necessarily find out why.
[00:17:07] Speaker B: That really is fascinating. I know we'll all be excited to follow your research and figure out why, because I think that's definitely a seldom talked about part of heirs property. So it's great that you're doing that work. So I'd like to close by just talking about kind of the path forward. So I know we've talked a lot about the UPHPA already, so just love to hear kind of your thoughts on the statute. What does it do well and where do you think it falls short? Maybe we could have more protection for folks?
[00:17:36] Speaker C: Definitely. I think that again, the UPSPA gives so much protection, but it's not a one fits all, it's not a now heirs property is solved type of statute. Rarely one statute ever is. Usually you do have to have multiple statutes or policies. But it has made considerable change and it has been enacted in more than 20 states across the U.S. the main thing is that it is still a voting game. And so in some states it has been introduced several times and not been enacted. Kentucky is one of those. So for whatever reason the state representatives at Kentucky they introduce but they do not approve it.
And for some it was an easier fight. I would say Mississippi, the UPHPA was actually under attack in the last cycle and there had to be several people, including Farm Burrow to come in to say this act need to stay. They were actually trying to dissolve it in Mississippi and take away those protections. And that's something that could be done in other states as well. So it's definitely not something that is concrete enough to say we're going to take a break.
The other thing about the UPHBA that like I said, is great is that it gives families extra time. Most times partition sales are quick. They have very quick deadlines. Families are not able to get together to really make decisions. And so it gives time and it gives warning. It gives a notice to the family. There's actual, you have to put up a visible sizable sign on the property to say that it has been partitioned or asked for partition proceeding. Like I said, that's great. Like I said before though, it does not give any type of financial help, which is desperately needed in a lot of families where you have a buyout round where you can possibly save the land, save the property and it's still not enough time, not enough funding. And again, you can't use the property for collateral in most of those ways. And so it's definitely something that, like I said, it's not a one, one all fits all type of thing. And land is still lost even, even in states that have the uphpa.
I'll also add that as far as agriculture wise, the farm bill and the 2018 farm bill included air property policies for the first time and that was very, very impactful and informative to our farmers and ranch able to secure a farm number which is like the Social Security number at USDA and really be able to tap into USDA programs for the first time, which means they could get loans at a lower interest rate, they could apply for grants, they could really be involved in the farming and ranching in ways that they couldn't before.
And so that was also a wonderful piece of policy and legislation that again is not guaranteed. The farm bill was supposed to come back up in 2023. We're still waiting on a farm bill and so it is still yet to be seen if anything about heirs property will be included, excluded and if any type of funding would be associated with it. And so although like I said, heir's property is something that truly can affect anyone, policies that are put in place are helpful but they still need a lot of people on the ground aspects just like this podcast to understand how important it is to continue the fight.
[00:21:28] Speaker B: Yeah. So is there anything that people or that heirs can do to protect themselves in states where there's not the UPHPA or where the UPHPA is kind of on the, on the chopping block are the things that people can do to protect themselves going forward.
[00:21:42] Speaker C: The most simplest thing is actually might be the hardest thing which is to talk to your family, create a family tree, see all the co heirs, see who is all involved, get in contact with them and let them know what type of vulnerability you have. Let them know that the taxes need to be paid. They're currently getting paid by Aunt Ruth, but Aunt Ruth is older and we need someone else to step up. Or we need to have a family collective where we could have money for taxes and we know what's going to happen. Same thing in partitions. Hey, if someone, an outside person comes to you, come to the family first. Or if you know that you're never going to come back to this land, you're never going to come back to this property, give me your undervalued interest. And so that way, like I said it's less fragmented and it's less errors involved. Most of that does not include any type of lawyer fees, it does not include any type of money. Just a little bit of communication. And that way at least you're not caught off guard if something happens. And so that's always the first step that we, that we always say is to make sure that you're able to collectively talk as a family and know what your, what your plans are for the, for the piece of property.
[00:23:01] Speaker B: Can you also tell us about some of the work that you and the Policy center have been doing on the ground to really raise awareness about this?
[00:23:09] Speaker C: Yes. So the Policy center funds different projects, research projects, and that's our goal, is to fund policy research that then we have policy recommendations that we hope get into the Farm Bill whenever the Farm Bill is around. We also work with different congressional groups to really make sure that they're informed with things that are affecting our farmers and ranchers. And we do have several research studies that were related in land loss in heirs property. One looked at the classification of heirs property. And so again, we think of heirs property as that's the only title. But when you're searching for heirs property and really trying to understand if maybe your family has heirs property or not, or doing research, several, several classification and nomenclature comes up and it's not uniformed at all. And that can be discouraging for people who might not know that they are heirs. They look up something about heirs and in their county and state is classified as a state or classified as at all. And again, they don't have the knowledge that this is something that could affect them longer term. Another one looked at just the amount of heirs property. And so we looked at several different states, first in those hot spots that I was talking about as far as the Black Belt, but then across the United States, including Oklahoma and the Northeastern United States. And look at how much heirs populate there really is. Another one looked at the partition sales and compared partition sales in three different states and those states that had the UPHBA and didn't, and what kind of differences there were, if there were any differences.
And so that was really interesting research. And then we also had one that looked at the 2018 farm bill. Those policies that I was talking about, whether they had any impact with farmers or ranchers, whether it made it easier for them to get a farm number, whether they even knew that those policies had been enacted and if they were taking advantage of those. And so again, it gives a good piece of how, again, knowledge, how important it is to make sure that people are beating the drum to say that you have these programs, they're accessible, make sure that you are tapped in and know what you can take advantage of as a property owner and seeing how again you can help improve that property. That wasn't an asset for so long. And so like I said best, that's some research that we're very, very proud of and essentially helps us help our farmers and ranchers at the policy center.
[00:25:56] Speaker B: Have you all also maybe prepared any resources or fact sheets or anything that you give out to people?
[00:26:03] Speaker C: Definitely. We have been able to work with great partners over the years. One being the Southern Rural Development center out of Mississippi State srdc. They have partnered with us to create curriculums that we actually go across the nation. Trainers one being myself. But train get together and teach the curriculum as a train the trainer. And so the goal that we have been doing is teaching a three part fundamental curriculum of the overview, prevention and resolution of heirs property. And like I said, we train the trainers so we invite community based organization, 1890 and 1862 extension, 1894 extension to then teach them so they can go out to the community and teach those in their community.
So again all about knowledge, all about accessibility. And within that there are several different worksheets, even games, videos that we have created so that families and those who are in the community have those and they're free, they're accessible and they have been vetted by heirs, poverty experts, lawyers, extension staff, researchers and things like that. The other thing is that we've been able to partner with Vermont law and so they have the CAFS program that has been able to do state fact sheets. And so they have done several states where they give about a five page fact sheet of what heirs property is, what kind of laws and what kind of resources are available in those states. And so if you have heirs property in Alabama and Mississippi, in Kentucky, you can actually go online and find those fact sheets and see different resources for about heirs property and how heirs property maybe be a little different from each state as well. And again those are on the, on their website is free. Again, one of our main goals is just making sure that people are knowledgeable and people have access to things. And so then like I said, you can start building your family team and really either having little successes, whether that is clearing the title totally or like I said, just becoming more glued as a family so that when something unfortunately happens you already have a to go list of things that you want to do that you already know who's going to pay the taxes so it doesn't go into any type of tax foreclosure. And so we we celebrate all the wins when it comes to reversing or admin diminishing land loss.
[00:28:39] Speaker B: Well, thank you so much Dr. Woods for being here and for talking about this. I think people call it sometimes the worst problem you've never heard of. So it monumental stakes but is really seldom talked about. So thank you so much for the work that you do and for providing a voice and for just raising awareness today.
[00:28:54] Speaker C: Thank you so much again for the invitation.
[00:28:56] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:29:22] Speaker B: Hi everyone, My name is liliana yearns.
[00:29:24] Speaker C: I'm a 1L at Harvard Law School,
[00:29:26] Speaker B: and today I'll be discussing death qualification
[00:29:29] Speaker C: and the jury selection process.
[00:29:31] Speaker B: I'll start out just giving a bit
[00:29:33] Speaker C: of background on the topic on my own, and then later on we'll be joined by Megan Byrne from the ACLU
[00:29:39] Speaker B: to give us a bit more information
[00:29:41] Speaker C: on some recent litigation in this area of law.
