Friday, August 31, 2007
Faith Rivers (Associate Professor of Law, Vermont Law School) has recently published her article entitled The Public Trust Debate: Implications for Heirs' Property Along the Gullah Coast, 15 S.E. Envtl. L.J. 147 (2006).
Here is the introduction of her article:
Heirs' property ownership is a significant problem facing the African American community in the "Lowcountry" of South Carolina. Heirs' property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives - the heirs - who possess fractionated fees as tenants in common. This form of concurrent ownership is an undivided interest in a fractional share of property. All cotenants share unity of possession, but acquire titles to varying sized interests at different times. Each generation passes the property down to their heirs, as there is no right of survivorship for tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash "equivalent," according to owner interests.
The scope of the heirs' property problem has been difficult to document. According to scholarly opinions rendered nearly three decades ago, more than one-third of all "black-owned" property in the rural South is owned as heirs' property. More recent research conducted for the Coastal Community Foundation of South Carolina (CCF) confirms that a significant portion of land in the Lowcountry is still held as heirs' property. Assessors identified nearly 2,000 property tracts of heirs' property in Charleston County, and another 1,300 properties (involving 17,000 acres) in neighboring Berkeley County. Within Berkeley County, the president of the Cainhoy Huger Community Development Corporation estimated that "85 percent of the *149 property [on the Cainhoy Peninsula] is owned as heirs' property." The prevalence of heirs' property is most evident on the Sea Islands and in isolated rural communities within the Lowcountry. At the time of the CCF study, there were 111 tracts of heirs' property on Wadmalaw Island in Charleston County. Likewise, on St. Helena Island, a small 64 square mile island in Beaufort County, researchers identified 124 heirs' property parcels.
Over the past three decades, scholars have proposed various strategies to re-conceptualize and protect heirs' property. Building upon work of scholars in the field, and the work of two generations of land preservation activists and lawyers who began the struggle in Hilton Head, this piece considers the state of heirs' property in the Lowcountry of South Carolina and evaluates various conservation strategies that may be utilized to preserve heirs' property. This Article examines the efficacy of utilizing the public trust doctrine and various tax incentive mechanisms as tools to conserve heirs' property. In particular, this Article proposes the development of a Gullah Culture Preservation Exemption as a conservation tool that preserves Gullah ownership and traditional use of coastal lands without hindering the property rights of heirs' property owners.