How heirs-property reform is empowering Georgia's landowners
By: Reid Singer July 25, 2019
In May, a small group of industry professionals and private forest owners met at an event space in Colquitt to mark the conclusion of the fifth series of the Georgia Landowners Academy. After the final presentation, graduates were handed a certificate - along with an official baseball cap, and a slice of celebratory chocolate cake - and walked away with binders full of notes on common forest problems like timber theft, arson and invasive species. By all accounts, it had been a useful 10 weeks. Participants received advice on harvesting and reforestation, effective marketing and record-keeping, and managing their land for maximum benefit. They also heard advice on the basic steps to resolving heirs property - an obscure topic, but often the primary reason people attend the course.
An introduction to heirs property is rarely fun, and often accompanies some unwelcome news. Some Georgians hear the term for the first time at the local bank, right after a loan application has been denied. Others might learn about it from a code enforcement officer, just before some home renovations were set to begin - or from a local logger, who declines to take on a promising harvest. Heirs property, they explain, is in a constant state of uncertainty: if the original owner died without a will, then each one of the descendants has equal access to the land, and a fractional interest in its market value. A small conflict between relatives can easily turn into a cumbersome tangle that takes years to sort out, and the risk is usually too great for banks and other businesses.
Without the support of lenders, it is almost impossible to improve a private forest or use it for financial growth - even if the family is honest and diligent and pays all of its taxes. Cleanup and recovery services, offered by the government after a natural disaster, are regularly denied to owners of heirs property. Timber companies tend to avoid working or collecting wood from private forests without a clear title holder. Leasing is also trickier, since most prospective tenants would rather avoid the confusion created by multiple landlords.
Heirs property can be expensive to maintain, and lenders are reluctant to accept it as collateral, which means it can't really be used to pay for school, start a business or build a house. As a result, even the biggest, most valuable pieces of this forestland are out of reach as a source of income, and can remain that way indefinitely.
"It's like a glass box of money," one expert explained. "You can see the pile of cash, but you can't get to it."
$34 Billion in Frozen Capital
Heirs-property owners often feel as though their family's history - and their authentic connections to the land - are being called into question. Many would rather not talk about it. No heirs-property owners could be reached for comment for this article. No one knows exactly how much land in Georgia exists in this category - which, by definition, has not been fully accounted for in probate courts. Looking at tax commission records from around the state, however, researchers have at least been able to reveal the scope of the problem: a 2013 study by the Georgia Appleseed Center for Law and Justice found 1,620 holdings in five counties had a "very high probability" of being heirs property, totaling 5,215 acres, and worth over $58.6 million. A 10-county report from 2017, by the U.S. Forest Service and the Carl Vinson Institute of Government, identified 72,583 acres that fit this description and placed their value at $2.15 billion.
"Scale that to 159 counties, and we're looking at $34 billion in acreage that is essentially frozen capital," said Delene Porter, chief operating officer at the Georgia Heirs Property Law Center (GHPLC). "If you don't have that clear title, it makes it impossible for you to manage your land as though it were an asset, rather than a liability."
The problem tends to be particularly serious among Georgia's African Americans, a group for whom stable land ownership has never been easy or straightforward. Before the Civil War, the state prohibited even free persons of color from purchasing real property, and during Reconstruction, former slaves and their descendants in the timber industry were faced with formal discrimination, threats of violence and limited access to credit. Though their holdings reached about 1.1 million acres in Georgia in between 1910 and 1920, this number has been declining ever since. In recent years, the U.S. Department of Agriculture (USDA) has declared heirs property to be the leading cause of involuntary land loss among African Americans. Decades of migration, abandonment or natural disasters would make it tough for any family to hold a legally coherent claim on a small farm or private forest, and it is even more difficult if you lack access to good advice on the law, or harbor a well-founded distrust of the judicial system.
"In minority communities, a lot of people don't leave a will," said Alex Harvey, who has worked on heirs-property issues for the Federation of Southern Cooperatives. "They believed that no one could ever take their land because it was in this very complicated legal limbo. They thought it was stable, but this actually wasn't true. In fact, it's the antithesis."
Clarifying Complexity. Building Trust.
Josh Walden, a lawyer in Charleston, described one individual who acquired a 13-acre tract of land in Buford County by deed in 1887. He died in 1910, with 16 children, each of whom had 10 to 12 children of their own, and now, each of the descendants owns an undivided share. If just one relative wants to sell to an outside party, then the courts may order a sale of the entire property and divide the meager proceeds among the family members. A co-owner who pays for most or all of the taxes on heirs property has no greater rights to the land than a co-owner who pays little or none, and if the taxes were unpaid, then the taxing authority could, similarly, demand that an auction take place.
"The ability to resolve these issues becomes horribly complex," said Walden, who serves as the chief operating officer for the Center for Heirs Property Preservation (CHPP). "Very often, clients come in because of some disagreement amongst family members, and their estate never having been resolved. They're worried about the potential of a forced partition sale."
The CHPP is one of several non-profits that have formed in the last 10 years to help forest landowners overcome these hazards. Another prominent actor is the Sustainable Forestry and African American Land Retention (SFLR) program, which Harvey helped to develop and pilot. Founded in 2012 in partnership with the Natural Resources Conservation Service (NRCS) and the USDA Forest Service, the program now operates in eight states, with 1,076 enrolled families who collectively own 77,095 acres. Through the SFLR, clients can access advice on tenure disputes, learn better planting and harvesting practices, and increase the health and viability of their land. Staff foresters can perform on-site visits to properties throughout the region and help their owners develop a long-term management plan, avoiding the kind of improvised, bi-yearly clear cuts that are unlikely to produce a sizable yield.
Over time, clients can make useful contacts and build a greater sense of trust with the government agencies that can keep them in business. These agencies have not always operated fairly in the past. Following the 1999 class action lawsuit Pigford v. Glickman, the USDA agreed to pay hundreds of millions of dollars to African American farmers who faced discrimination when applying for grants or subsidies they needed to operate. Lacking financial support or professional knowledge, many of these landowners were also kept unaware of their eligibility for cleanup and harvesting assistance programs after natural disasters, and over the years, their properties have suffered a great deal.
"There's some history behind this," said Steve Patterson, director of forestry services at CHPP. "The reason some heirs property is in a degraded state is that African Americans didn't have access to the same programs that the rest of the public did, or they weren't aware of them."
In addition to the technical assistance, pro bono foresters might also offer insight into marketing and selling wood products for the best possible return. If clients are less interested in timber sales, the foresters can provide help with developing clients' property as a wildlife habitat, so that it's more amenable to use as a hunting preserve, or simply as a place to hike, fish and enjoy the outdoors.
Of course, this is assuming that all the co-owners are aware of their rights and have come to some accord. Not all families are good at staying in touch or agreeing on how to manage their shared assets, and as previously remote or unattractive corners of the state have become more valuable, it's become common for outside speculators to deliberately seek out tracts of heirs-property forestland and attempt to purchase it from a single, isolated relative. Even if others object, judges have routinely ordered a partition sale as the simplest and "fairest" way to divide heirs property, regardless of who was caring for it or what its cultural or historic value might have been.
For years, few people in government were aware of these settlements, which have generally taken place in local courts, and between parties with minimal financial or political capital. Heirs property affected a large number of farmers seeking redress in the Pigford case, however, as well as Hurricane Katrina evacuees interviewed by Georgia Appleseed, many of whom were ineligible for federal “Road Home” rebuilding funds. More recently, legal scholars and policy makers have noted a surge in interest in uniform partition reform, which would make heirs property disputes easier to resolve, without breaking things up.
“In the last couple of decades, the narrative that black landowners were on the verge of extinction has begun to dissipate,” says Thomas Mitchell, a law professor at Texas A&M University School of Law. “There’s a recognition that things that could be done in a concrete way to help stem some of the forces that were leading to involuntary land loss—policy interventions to stabilize their ownership, or enable them to move from clinging on with their fingernails to actually thriving.”
Mitchell served as the principal drafter of a model statute for new property partition laws, which have since been adopted by eleven states. In Georgia, the state legislature passed the Uniform Partition of Heirs Property Act in 2012, allowing for more legal alternatives to forced auctions. In the past, many heirs property owners only learned that their land had been sold when they received an eviction notice in the mail, and so the new law also calls for better notification practices. Judges are now required to exercise greater consideration for families at risk of homelessness, and there is a mandate for the hiring of a disinterested real estate appraiser, to assess the true value of the land. This can help prevent the heirs property from being bought at below market price—as outside speculators have often tried to do.
“I think the new Uniform Partition Acts provide a lot of protections that were previously unavailable,” says Walden. “There are a lot more checks against forced partition sales instituted by non-family members, who might have purchased their way in.”
Because uniform partition reform been framed as a property rights issue—as well as a way of overcoming racial injustice—the UPHPA has been popular across partisan lines, and actually passed the Georgia legislature unanimously. This is also an exciting time for organizations like the GHPLC, which has provided title clearing, estate planning, and related services for over 250 cases since its founding in 2015. There have never been more tools available for forest landowners seeking to convert their property from a burden into a resource, but academics and nonprofits say more work can be done to educate the public.
“We’re definitely in it for the long haul,” says Porter. “The goal is to get to an awareness level where people understand what heirs property is, and they understand that it can be remediated and prevented.”
The GHPLC has taken a leading role in the Georgia Landowners Academy, which has served 133 participants, and is available to anyone who owns 10 or more acres. In addition to hearing about the cost-sharing programs and expert advice offered by the state, attendees could also have wills prepared by a licensed attorney—all for free. These introductions to heirs property—while not exactly fun—have left the people novice forest landowners feeling far more confident and informed than when they started.
“We were at ground zero when we began,” one Augusta-based landowner said, following the graduation ceremony. “But now, we’ve got a thousand different ideas on what to do next. It’s been outstanding."
Reid Singer is a journalist based in Atlanta. He has written for Smithsonian, Outside, and The New Yorker.
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