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Laws aim to protect inherited land

by Carol Sanders Special to The Commercial | November 2, 2020 at 1:00 a.m.
A cpmbine harvests wheat on a Kansas farm in this June 2009 file photo.

Land ownership, whether it be a family farm or a home site in town, is considered an asset and often a measure of wealth. Wars have been fought over land ownership, which is of interest to many parties including those concerned with social justice.

Land ownership by Black farmers peaked in 1910 at 16-19 million acres, according to the Census of Agriculture, but the 2017 agriculture census reported only 3.8 million acres were owned by Blacks, said Henry English, director of the Small Farm Program at the University of Arkansas at Pine Bluff.

What accounts for this loss? Challenges associated with heirs' property status are the leading cause of involuntary land loss among Black farmers, said Sen. Doug Jones of Alabama.

Jones' provision in the 2018 Farm Bill authorized loans to help families resolve heirs' property ownership and succession issues.

"Sixty percent of minority owned land is projected to be heirs' property," Jones said. "Partition sales are a leading cause of Black land loss, according to the National Black Caucus of State Legislators."

Sixty percent of land in the U.S. is owned by private individuals and corporations. The rest is owned by federal, state and local governments, with the federal government being the largest landowner.

Heirs' property refers to family-owned land passed down without a will and held by descendants as "tenants in common," English said.

Each owner has an undivided interest in the land. Any owner or anyone who purchases a small interest in the land can file with the court to force other owners to sell. These "partition sales" often occur against the wishes of other family members. The result is often a sale that does not meet fair market value and may result in the dispossession of family members from their inherited land, English said.

"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," he said. "Most owners may not be aware that their property is in jeopardy until a partition action is underway."

Eighteen states have sought to rectify this method of dispossession of family members from inherited land, English said. These states have enacted the Uniform Partition of Heirs' Property Act (UPHPA). Arkansas was the fifth state to do so. This state law helps protect the interests and needs of vulnerable landowners.

The Uniform Act, introduced and sponsored by Rep. Matthew J. Shepherd, was signed into law by Arkansas Gov. Asa Hutchinson on Feb. 18, 2015, and is known as Act 107. It allows the owners or tenants-in common to buy out an owner who wants to sell at the appraised value without having to put the entire property up for sale, he said. Unfortunately, not many owners are aware of Act 107.

The federal government, through Jones' 2018 Farm Bill provision, is helping heirs' property landowners, too. It allows owners of "heirs' property" to qualify for a Farm Service Agency farm number and be eligible for many U.S. Department of Agriculture programs, including lending and disaster relief programs.

It also gives farmers and ranchers who own heirs' property in these 18 states priority consideration for legal assistance to help them restructure their legal ownership for greater stability and to obtain clear title to their property, English said.

"While resolving heirs' property issues may take time and sometimes require legal assistance, there are many things that families can do to begin to unlock the potential of their land and to protect it for future generations," said Amy Pritchard, assistant professor of clinical education at the University of Arkansas at Little Rock William H. Bowen School of Law.

Pritchard says owners should take the following steps:

• Plan for the future. Write a will or prepare a transfer on death deed to help pass a clear title to the next generation.

• Pay your property taxes. Visit the tax assessor's office and make sure your taxes are paid and that the address of the person responsible for coordinating bills is up to date.

• Make a family tree. Find out the names on the deed for your land and lay out each generation of heirs. Use legal documents from the county such as birth and marriage certificates, obituaries, family letters and records from family reunions.

• Create a paper trail to prove ownership. Many states allow for an affidavit of heirship to be filed in the property records to establish ownership. Rules of affidavits vary by state.

• Consolidate ownership. Ask other heirs if they would be willing to transfer their interest to those with close ties to the land.

• Manage the co-ownership. Talk to a lawyer about options such as creating a family LLC or land trust.

• Track your expenses. If you pay for property expenses, such as improvements to the homes or taxes, keep track of them. If a partition sale is started, you may be able to receive a larger share of the proceeds.

Those owning land in 18 Arkansas counties are eligible to participate in the award-winning Keeping It in the Family (KIITF) Sustainable Land Retention Program (SFLR) conducted by UAPB in collaboration with federal, state, local, private and community-based organizations to help keep private forestlands in families, English said. The program is managed by the American Forestry Foundation.

The 18 counties eligible to participate in KIITF programs are Bradley, Calhoun, Clark, Cleveland, Columbia, Dallas, Drew, Hempstead, Jefferson, Lafayette, Little River, Miller, Nevada, Ouachita, Miller, Pike, Sevier and Union.

For more information on the SFLR program, contact Kandi Williams, SFLR outreach coordinator, (870) 571-9428; Joe Friend, UAPB area forester, (870) 500-8454, or Henry English at (870) 575-7246.

Carol Sanders is a writer/editor with the UAPB School of Agriculture, Fisheries and Human Sciences.

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