Excerpted From: Brenda D. Gibson, The Heirs' Property Problem: Racial Caste Origins and Systemic Effects in the Black Community, 26 CUNY Law Review 172 (Summer, 2023) (312 Footnotes) (Full Document)


BrendaDGibsonDesiree is heir to her mother's home in the Hurricane Katrina-ravaged Ninth Ward of New Orleans. Like so many partitioned properties there, Desiree's recently inherited property was severely damaged by the hurricane and needs a lot of repairs to become habitable. Unfortunately, before she can do any of these repairs, she must show proof of her ownership of the property, which is virtually impossible because the inherited home is heirs' property. Without proof of ownership, Desiree cannot qualify for Federal Emergency Management Agency (“FEMA”) funds or other financial assistance, or even a bank loan. As a result, the home is destroyed before Desiree can save it.

Desiree is a minor character on the HBO series Treme, which follows the interconnected lives of a group of New Orleans residents after Hurricane Katrina. However, she could very well be one of many heirs' property owners who are denied assistance for properties damaged after natural disasters in the United States.

In another, real-life example penned by Sarah Sax in The Guardian, an independent news publication, the story of Margaret Alston, an heir to her grandmother's home in the Hurricane Matthew-ravaged town of Bucksport, South Carolina, rings even louder.

Margaret lived in the home, originally bought by her grandmother, undisturbed until Hurricane Matthew tore through South Carolina in 1999. There was tremendous damage done to the house, and it was uninhabitable. Though she did qualify for some FEMA funds, because the home and the land on which it sits is heirs ‘property, which by its nature has a murky title, Margaret could not qualify for sufficient assistance to repair the property. As of the time of the story, Margaret was still living in Conway with her sister, and the house still sits abandoned, storm-ravaged and mold-infested. The funds for Hurricane Matthew victims have dried up, and private loans are not available. Margaret is not eligible for any of these funds because she is not listed on the deed as owner of the property--one of the quirks of heirs ‘property ownership.

Josh Walden, an attorney with the Center for Heirs' Property Preservation, has noted, “If you don't have a clear title, you can't make the land work. If you're a farmer ... if you're a forester you need that [legal] recognition in order to have access to governmental programs to be successful at getting the land to work for you.”

Briefly, “[h]eirs' property is family owned land that is jointly owned by descendants of a deceased person” by intestacy. While these heirs “have the right to use the property ... they do not have a clear or marketable title to the property since the estate issues remain unresolved.” Further, things become increasingly complicated as the number of heirs grows each generation and as people pass away. Because there is no will or deed and a nebulous class of heirs, it is oftentimes difficult for heirs to obtain financing to maintain the property and prevent forced partition sales by third parties or other heirs, impeding individual (and, consequently, generational) wealth and resulting in land loss.

As the elders of families die and the next generation takes up the mantle of heirs' property management, the travails of heirs' property ownership, along with its limited rights and all of its responsibilities, increasingly come to the fore. Historically, this mechanism for passing down property without a will was the only viable way for freed slaves to ensure that the property remained in the family. And while this mechanism worked well with the communal style of living and shared wealth that originated from native Africa, very soon after Reconstruction, the costs quickly began to outweigh the benefits.

Examining American laws and systems, it becomes clear that the heirs' property ownership model, born out of necessity for a people who were previously property themselves, was never meant to result in the same wealth as that of the majority population. Indeed, history shows that white America never intended post-slavery Black landowners to attain the same wealth as them. Initially, I looked at heirs' property as a principal cause of Black land loss. But after looking through an historical lens at American government, laws, and social constructs, I modified my thesis: Heirs' property is more a product of the deeply entrenched racial caste system of racist governmental processes and laws that have militated against Black land ownership and wealth. Indeed, regardless of the modality (whether through the heirs' property ownership model or other means), America's racial caste system--a byproduct of systemic racism, and biased government policy and social and business practices--has caused Black land loss and thereby denied African Americans equitable access to wealth in American society. In short, property--the very thing that is supposed to be a vehicle to wealth--is instead an impediment to wealth.

In this article, I hope to further elucidate the history, as well as the rights, roles, and responsibilities, of Black property ownership and uncover the systemic impediment to wealth (rather than the source of wealth that majority populations enjoy) that Black land ownership has become to so many African Americans. I also discuss some of the solutions (current and aspirational) to these problems. And while there is a proliferation of heirs' property (and the accompanying problems) in many areas of the United States, this article examines the phenomenon as it occurs in the Low Country of South Carolina, where the Gullah/Geechee culture lives. This focus is based upon my own personal struggle as an only child of a now-deceased mother whose family owned numerous tracts of land in that part of the country. I knew a lot about my family's struggle to acquire and keep the land, and for that reason, I struggled with my new role as one of probably hundreds of heirs to property on which they would likely never live. But I did not want to lose the land or my family's ties to that land--the culture.

Following this introduction, Part II will discuss some general precepts of American property law and the history of the Low Country, which will in turn explain the history of Black property ownership and the unique characteristics of the heirs' property model of ownership that is so prevalent in this region. Part III will highlight the obstacles to Black land ownership and the reasons for Black land loss in the South, which include the federal government, commercial developers, and the heirs' property model of land ownership. Looking at the historical component of this problem and the systemic nature of racism in America, Part III also highlights the loss of the Gullah/Geechee culture, which accompanies the loss of Black land in the Low Country. In Part IV, the article discusses possible solutions to these problems with a brief conclusion that follows in Part V.

[. . .]

If we are our ancestors' dream, we must be better caretakers of their legacy. In the Low Country (and, perhaps, so many other places), our legacy is our land. Our culture is our land. Hence, we must act strategically to preserve both our land and our culture. Moreover, what becomes clearer every day and with each acre lost is that history informs the future, and the future is now. Organizations, federal and state governmental agencies, the bar, and the bench must all come together to remove historical impediments to Black wealth.

The racial caste system, which so long ago brought African slaves to this country and has consistently supported institutions and social and economic policies that impeded their path to wealth even after hard-fought freedoms, must be disemboweled. What is incumbent upon us all is to identify and deploy all stakeholders in our land and cultural preservation efforts. The alarm has been sounded; all affected parties must heed the clarion call.

Brenda D. Gibson is an Associate Professor of Legal Analysis, Writing and Research at Wake Forest University School of Law.