Since the start of 2021, seven states and the District of Columbia have introduced a law that could address devastating land loss that disproportionately affects African-American farmers. They join the 18 states that enacted the Uniform Partition of Heirs Property Act (UPHPA) between 2012 and 2020 to address the phenomenon of heirs’ property.
Advocates call this law “game-changing,” and Savi Horne of the Land Loss Prevention Project tells Food Tank that “Congress members are some of the ones really pushing [the UPHPA] in their states.”
In 1910, about 20 percent of Black farmers owned the land they farmed, approximately 16 million acres at the height of ownership, according to the U.S. Department of Agriculture (USDA). But by 2017, Black land ownership had fallen by 90 percent to approximately 1.6 million acres. Violence and intimidation, along with years of neglect and racist treatment from the USDA, contributed to the failure of Black-owned farms and worsened land loss.
Given the role of land ownership in wealth creation in the U.S., this land loss contributes to the modern racial wealth gap. The UPHPA seeks to reverse this trend by helping landowners retain their land. And while heirs’ property affects Americans of all backgrounds, the highest proportions are in the Black Belt South. Virginia, Mississippi, Florida, and New York all passed the UPHPA in 2020.
Francine Miller, attorney at the Vermont Law School Center for Agriculture & Food Systems (CAFS), sees the media attention on heirs’ property as reflecting current events. Miller tells Food Tank, “The reckoning that America has been going through around its history with race is part of what is happening here.”
According to the CAFS Farmland Access Legal Toolkit, heirs’ property results when a property owner dies without a will or leaves property to heirs in a legal form called tenancy-in-common. In these cases, state inheritance laws grant co-ownership of the property to all surviving family members, known as co-tenants. The number of co-tenants increases with each successive generation, and each heir legally has a say in the use of the entire property.
Co-tenants may be unknown to each other, may not even know the property exists, or may not agree on how to use it. Marcus Comer, Board Chair of the Black Family Land Trust, tells Food Tank that some families “only find out they have heirs’ property from trying to farm.”
The lack of clear title makes it impossible for individuals to legally improve the land, to use it as collateral, or to access disaster relief, other funding, or USDA programs requiring a farm number.
Prior to the UPHPA, co-tenants could sell their shares of the land without the consent or knowledge of their co-tenants. The new owner could then request a partition action, which requires all of the land to be sold at auction—with the profits divided among the heirs—regardless of the other co-tenants’ wishes.
In this way, the new owner could purchase the auctioned land at a price drastically below market value, leaving the family heirs landless and sometimes making them homeless.
First passed in Nevada, the UPHPA requires that the co-tenants have the chance to buy out the co-tenant who wants to sell. Courts must also consider non-economic factors, including the cultural significance of the property and potential hardships created by evictions. Only as a last resort should a partition sale proceed, with the price reflecting market value.
Some families have effectively used the UPHPA, but many others eligible to use it cannot afford the legal fees involved. A 2018 Farm Bill provision authorizes US$10 million annually for heirs’ property owners to pay legal costs related to settling land claims. Through the relending program, owners can apply for up US$600,000 in assistance. Mavis Gragg of the American Forest Foundation’s Sustainable Forestry and African American Land Retention Program tells Food Tank that the provision gives preference to UPHPA states. “[Lending institutions] in UPHPA states will have an automatic edge over their peers in other states,” says Gragg.
The 2018 Farm Bill also has a provision to help heirs’ property owners operating farms to get a farm number, allowing access to USDA programs. This process will also be easier in UPHPA states, encouraging momentum and strategizing to pass the UPHPA nationally.
The USDA has issued guidance for heirs’ property owners wanting a farm number. How the USDA communicates this guidance is crucial to ensuring uptake, according to Dãnia Davy, Director of Land Retention & Advocacy at the Federation of Southern Cooperatives/Land Assistance Fund.
To evaluate heirs’ property owners’ access to USDA programs, the Federation is conducting research that will undergird future coalition building and advocacy. “We have the legislation, the articles, the recommendations … to understand the needs of heirs’ property owners. We need more help to do the lifting,” Davy tells Food Tank.
Photo courtesy of the USDA