Tuesday, August 29, 2006

Rivers on Heirs' Property

Thanks to Ann Bartow (in a comment to my last post) for pointing out an interesting paper by Faith Rivers (Vermont Law School) titled Restoring The Bundle of Rights:  Preserving Heirs' Property in Coastal South Carolina.  From the introduction:

Heirs' property refers to real property held without clear title.  The property is typically owned and inhabited by indigenous families, a significant number of whom can trace their ownership back to purchases by former slaves during the civil war and reconstruction.  The deed to the land is registered to a deceased family member.  The land has been handed down from generation to generation through the intestacy laws and is now owned by a group of relatives who possess fractionated fees as tenants in common.

The paper provides a historical overview of the problem and discusses related policy and reform issues.  Heirs' property presents a host of interesting and important issues.  I talk a bit about it when I cover tenancy in common and actions for partition.  Buyers (often white) can buy one heir's interest, seek partition, and buy the property in the partition sale, a problem that Rivers discusses in some detail.  The highly fractured ownership caused by generations of intestacy also reminds me of the Native American land at issue in Hodel v. Irving.

Ben Barros

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There are a lot of parallels between the situation Professor Rivers describes and the status of rural lands in Hawaii that were awarded to Native Hawaiians in the Mahele during the 1840s and 1850s or that were purchased by them in the 1860s or 1870s. The typical pattern is that a sugar plantation or cattle ranch will have purchased a cotenancy interest in these lands over the years, while the remaining interests will have passed by intestacy to the modern heirs of the original Native Hawaiian owners. The corporate cotenant now seeks to sell the land for residential or resort purposes and initiates an action to quiet title and for partition. Under Hawaii law, a successful claim of adverse possession against an out-of-possession cotenant usually requires proof of actual notice of adversity (the evidence for which is usually unavailable), but even if these cotenants can get a judgment recognizing their interests, the corporate plaintiff is usually successful in forcing a partition sale or cash settlement. Minimum lot sizes and the expense of subdividing the land usually make partition in kind unavailable to defendants.

Posted by: Carl C. Christensen | Aug 30, 2006 4:05:21 AM

You might be interested in my family's case, now before the Appellate Court of Appeals in Alabama.

Posted by: Tana McDonald | Sep 7, 2006 11:24:12 AM

If there are multiple children and all have expired but two, are the only two remaining children the only ones whom have claim to heir's property or do all the the children of the expired siblings have claim as well?

Posted by: Jack | Nov 14, 2007 11:49:55 AM

My aunt passed away and left a house to my mom, who is executer, and my mom sister and brother. my mom has been paying taxes on the house and also paying lights, gas and water and any upkeep on the house that is needed, without the help of her sister who is living there with her daughter. They don't contribute to the upkeep of the house at all. Is there anyway for my mom to get her sister out of the house? What does she need to do? She has used up most of her retirement money fixing and doing repairs with out help from her freeloading sister, who I might add, doesn't have a job. Please help. My mother just found out she has colon cancer and this is really stressing her out. We would be very grateful for any help you can give. She knows that she needs to get the will probated also.

Posted by: Elizabeth | Sep 8, 2008 8:28:38 AM

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