Gulf Shores I’ve been hearing about the loss of land, particularly farmland, by African-American families, for fifty years. I knew there was bound to be some fast and loose dealing behind the fact that 90% of black-owned land was lost between 1910 and 1997, but I assumed it was driven by unequal market negotiations and forced largely by economic desperation. Reading Lizzie Presser’s article, “The Dispossessed: Why Are So Many Black Families Losing Their Land?” in The New Yorker gave me a clearer picture of the plain and simple skullduggery, cheating, and stealing involved.
It starts with something called “heirs’ property.” Presser explains that in heirs’ property “descendants inherit an interest, like holding stock in a company.” This form of land inheritance dates back to Reconstruction and Jim Crow eras when African-Americans didn’t have access to the legal system. The ABA calls it “the worst problem you never heard of.” The USDA cites it as “the leading cause of Black involuntary land loss.” Presser notes that that “heirs’ property is estimated to make up more than a third of Southern black-owned land – 3.5 million acres, worth more than twenty-eight billion dollars.”
The heart of the problem of heirs’ property is that it lacks clear title despite many situations in which a deed is gripped firmly in a family member’s hands. Clearing a title is tricky. It means tracking down all of the family members. It involves lawyers generally and there are few that specialize in this area. It costs money and is complex. Without clear title the land can’t be used as collateral or qualify for USDA loans for planting or buying livestock. Or, and this was a punch in my gut, used for disaster relief. Presser indicates that after Hurricane Katrina in New Orleans in 2005, “twenty-five thousand families who applied for rebuilding grants had heirs’ property. One Louisiana real-estate attorney estimated that up to a $165 million dollars of recovery funds were never claimed because of title issues.”
The land burglar’s tools in places like North Carolina include something called the Torrens Act. A family member can claim “adverse possession” and bypass court judgments and courts themselves by making a claim of ownership to a lawyer appointed by the court, who the claimant pays. There’s only a one-year window to appeal a Torrens determination, and it’s over before many families realize their land has been snookered under their noses. When developers and development is involved, quickly the value of the land can skyrocket from farmland to prime real estate making it hard for many families to pay the property taxes. Land vultures hover around tax auctions waiting to swoop in and take the land, and usually succeeding.
We’re not through with this litany of horrors masking as legalized theft. Next in the rogues’ gallery is “partition action.” As Presser explains, “Speculators can buy off the interest of a single heir, and just one heir or speculator, no matter how minute his share, can force the sale of an entire plot through the courts.” The practice also dates back to the time of the Civil War. In research in one county in North Carolina, Presser found that 42% of the partition sales involved black landholders even though the population of the county was only 6% black. Adding insult to injury, heirs are forced to pay the legal fees of those who bring the partition cases forward.
Eight states in the South have not approved the Uniform Partition of Heirs’ Property Act, including North Carolina, that attempts to reform this practice. Eleven states still have the Torrens Act on on their books. Only in 2018 did Congress finally pass an act allowed for USDA loans for heirs’ property if all members of the family agreed.
Meanwhile every day more of the millions of acres are stolen somewhere in the South. Who says reparations is old Civil War news when so many of the crimes allowed in the aftermath of the war are still being perpetuated in the name of racist laws now?