Law school clinics tackle challenging issue of heirs’ property rights
Real Estate & Property Law
Law school clinics tackle challenging issue of heirs’ property rights
May 30, 2023, 8:14 am CDT
Although the pro bono heirs’ rights clinic at Faulkner University’s Thomas Goode Jones School of Law won’t open its doors to the public until the fall semester, professor Kelly McTear, who is director of public interest programs at the school, is grateful the project has gotten this far.
“Since I started at the law school 10 years ago working on various pro bono and access-to-justice initiatives, this is always the one issue that gets pushed to the side. This is always the one issue that’s too big to handle or too complicated,” says McTear, who starting in August will supervise 10 law school students as they help people from low-income communities in Alabama’s Montgomery and Macon counties get clear titles to their land or homes.
Gaining traction on the thorny legal issue of heirs’ property law, which has an outsize impact on generations of Black families, is a challenge for advocates like McTear. That’s partly because heirs’ property as a legal concept is not only complex but a problem that has been overlooked for decades.
Stripped of assets
Heirs’ property is a name given to a home or land left to family members without an effective deed or will. With no clear title proving ownership, it can be difficult for descendants to sell or lease their property, build equity, or take advantage of homeowner assistance funds or disaster relief. Over time, as the property is handed down, more heirs can lay claim to it. This can make it vulnerable to outsiders who can swoop in to buy a stake from a descendant with a partial interest and then file a partition action in court. This may end in a court-ordered sale of a property for pennies on the dollar, stripping people of land that’s been in the family for generations.
Heirs’ property ownership, along with Jim Crow laws, has robbed Black farmers of millions of acres of land and billions of dollars in wealth. But the issue also impacts other disadvantaged families and communities who have property with no clear title.
At the Faulkner clinic, the law students will help families establish who has an ownership interest in their properties and provide clients with the resources they need to enter into mediation programs or establish a family LLC or trusts to consolidate ownership. In some cases, the clinic could represent clients in partition and title actions, McTear says.
“This can really change the face of the socioeconomic landscape in this area, which is one of the poorest in the country,” she says. “We hope that the global impact will not just be for communities and the economic stability of particular geographic areas but also have an impact on the profession.”
Boston College Law School professor Thomas W. Mitchell, a nationally recognized expert on heirs’ property, was the principal drafter of the Uniform Partition of Heirs Property Act, a law protecting people who are locked in a so-called tenancy-in-common ownership structure with multiple heirs. The law has been enacted in 21 states, the District of Columbia and the U.S. Virgin Islands, and it has been introduced in five other states.
Many heirs’ property owners are “land rich and cash poor,” Mitchell says, and have few assets besides their property. He says he is “thrilled” to hear about the new clinic and says it “has the potential for making a significant contribution, or at least mitigating poverty among disadvantaged families.”
A handful of other law schools are tackling heirs’ rights issues, Mitchell says. Texas Southern University’s Thurgood Marshall School of Law has a Wills, Probate & Guardianship Clinic covering heirs’ property. In January, the Wake Forest University School of Law started a Heirs’ Property Project at its Environmental Law and Policy Clinic.
Twelve law school students at Wake Forest are tackling a half-dozen cases. The project will “build a pipeline of lawyers trained to manage heirs’ property cases,” and “serve as a hub for research, learning, and interdisciplinary training on land rights issues in North Carolina,” according to a news release.
Multifront effort
In another front in the fight to reclaim stolen land for heirs, the organization Where is My Land is representing several Black families. The group’s founder and CEO, Kavon Ward, helped the relatives of Charles and Willa Bruce get back land the town seized from the couple in Manhattan Beach, California, more than a century ago. The Bruces bought the land in 1912 and ran a beach resort frequented by Black patrons before the property was taken through eminent domain proceedings.
This year, Where is My Land said it will assist the descendants of Broadway playwright Lorraine Hansberry, who wrote A Raisin in the Sun, as they seek reparations against the City of Chicago. They say the city used unreasonable mass building inspections and abused state power to strip the family of properties that Hansberry’s father left to them.
Meanwhile, McTear says she wants to expand the clinic’s reach beyond Montgomery and Macon counties to the north and south, tapping into existing partnerships with the Montgomery Volunteer Lawyers Program, the Alabama State Bar Volunteer Lawyers Program, Legal Services Alabama and local courts.
McTear says the clinic could meet future demand by connecting with farmers’ alliances and other universities.
“If you look at the geography of the state, the central region has been called the Black belt for time immemorial just because of the fertile soil that’s here,” McTear says. “It’s an agrarian swath of Alabama, and one of the places where poverty is most prevalent, and where issues like this are widespread. So we want to address that portion of the state first, and then move from there.”
