Adverse Racial and Community Impacts of Heirs’ Property Title Problems

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July 15, 2015; Pew Charitable Trusts

Charleston, South Carolina has been in the news a great deal in recent months, partly from the police killing of an unarmed black man stopped for a traffic incident in North Charleston, more recently Dylann Roof’s massacre of nine worshippers at Emanuel AME Church in Charleston itself, and Mayor Joseph Riley’s rededication to creating a black museum in the city. It is so sad that the city’s racial history has made Charleston into a crucible for understanding how our nation might better respond to societal inequity and virulent racism.

One of the elements of reducing inequities in Charleston and in many other southern cities is to help black families retain title to properties that have been held in their families for generations without deeds. For many years, black families in Charleston and other places have lost title and occupancy of properties because they lacked clear title. The problem goes back to the Reconstruction era, when black families first gained property rights in the South. Even with the end of slavery, because black families were unable to access the legal system, they were frequently unable to establish formal ownership in a way wherein properties could legally revert to their heirs in future generations.

Moreover, anyone who could establish themselves as one of the many potential heirs to properties could petition the courts for a forced sale. This tool was often used by developers to get prime real estate out of the control of property owners, frequently for much less than the property’s actual worth—in other words, a money grab by one family member, induced by real estate developers, to the detriment to other family members, even those who didn’t know they might have had some measure of ownership rights.

Those of us who have worked on affordable housing in Charleston and other similar cities have seen the impact of problems with heirs’ properties. Frequently, homeowners were unable to get approval for financing to redevelop properties, much less turn them over to younger family members. There are case-by-case strategies for dealing with the ownership and title issues concerning heirs’ properties, but a Charleston nonprofit, the Center for Heirs’ Property Preservation, has taken the lead in helping families establish clear ownership. Six states so far, though apparently not South Carolina, have adopted versions of the Uniform Partition of Heirs Property Act that makes it easier to divide property and preserve wealth despite the often multiple numbers of heirs with potential ownership interests.

The importance of attention to fixing the situation of heirs’ property, according to Thomas Mitchell, the University of Wisconsin law professor who drafted the uniform legislation, is in part because of the population adversely affected by this problem: “You’re going to see it anywhere you have poor, or sometimes even just middle-class, property owners who have not been able to organize their common property ownership in a sophisticated way.” The result of unresolved heirs’ titles is, according to Mitchell, that the families living in these properties are often unable to demonstrate clear title in order to qualify for mortgages or home improvement loans, resulting in housing deterioration or even abandonment.

Although seemingly unrelated to the terrible tragedies that have occurred in the Charleston area recently, the effort to rectify and rationalize the problem of heirs’ property is also important. It is certainly important to deal with symbols of racial hatred like the display of the Confederate battle flag that was part of Roof’s paraphernalia and to address police behavior that has too often resulted in the death of unarmed black men, but there is also a continuing need to focus on less obvious, less visible systematic issues such as heirs’ property rights problems that lead to and enforce structural and institutional racial inequities in our society.—Rick Cohen