Land ownership is a vital asset to all communities. Within the last century, African-American land ownership has rapidly declined. Comparing the U.S. Agriculture Census data on African-American farmland ownership for 1910 and 1997, it shows a drastic decline from its peak of 15 million acres in 1910 to 2.4 million acres in 1997. A recent study estimated that in the early 20th century, rural landownership among African-American farmers and non-farmers was between 16 and 19 million acres (Gilbert, J., 2002). The 1999 Agricultural Economics and Land Ownership Survey (AELOS), which assessed private rural landownership across race and use (i.e. farming, forestry, etc.), found that there are currently 68,000 African-American rural landowners and they own a total of approximately 7.7 million acres of land, less than 1% of all privately owned rural land in the United States. (AELOS, 1999). Sixty percent (60%) of which is owned by non-farmers. (AELOS, 1999). However, this acreage is valued at $14 billion. (AELOS, 1999). With rural landownership clearly being a significant economic resource base in the African-American community controls, why do African-Americans continue to lose their land?
COMMON LEGAL CONTRIBUTORS TO LAND LOSS
The Federation has identified 7 common causes of African-American land loss:
1. Heir Property Ownership.
When a person dies without a will, or other type of estate plan, state law controls who can rightfully inherit and how much they can inherit. Land that is passed down to heirs according to state law is commonly known as heir property. If the deceased owned land before death, the legally recognized rightful heirs will each inherit an undivided, fractional ownership interest in the land. Their interests are fractional because each co-owner has an individual, partial interest in the whole. Their interests are undivided because the heirs do not have separate deeds to their ownership interest. In fact, no heir can assume that his/her interest correlates to a specific area of the land until AFTER the land has been subdivided. The size of each heir’s fractional ownership interest depends on several factors -How many generations removed is an heir from the deceased?; and, How many heirs can rightfully take their inheritance at a specific point in time?
Heir property ownership is often the precursor to land loss. With each passing generation of heir property owners who die without a will or other estate plan, a new generation of heirs inherits ownership of the land. Typically, each successive generation is larger than the previous one. As a result, the next generation of landowners’ ownership interests are smaller, yet the number of interest holders has increased. With numerous co-owners, the following can occur, which can impede proper management of the land:
* Heirs do not live on or near the land; * Heirs do not liver near each other; * Heirs do not know one another; * Heirs do not how to locate one another; * Heirs do not have a connection to the land;
These common situations can make it difficult, if not impossible for the land to be properly managed. Lack of a land management plan and/or improper implementation of a land management plan can lead to land loss. In some cases, the land is being managed, but this responsibility rests in the hands of one heir, or a small group of heirs, with the other heirs enjoying an unearned benefit. Those few who do invest in their family’s land, however, can face many obstacles to properly managing it. Without specific authorization by the other heirs, many land use decisions (i.e. harvesting timber, leasing, building a structure on the land, etc.) can be made ONLY by unanimous consent.
2. Lack of Estate Planning.
Estate planning is the process of arranging for the distribution and management of your estate after you die. An example of an estate plan is a will. Estate planning is important tool for many reasons. One, you are prepared for the unexpected ? incompetency and death. Two, when you have an estate plan, you can prevent the creation of heir property. And, three, if you are currently an heir property owner, you may potentially be able to prevent further fractionation of it.
Despite the advantages to having an estate plan, very few African-Americans have an estate plan. In an U.S. Senate-commissioned study conducted by the Emergency Land Fund in the early 1980s, it was found that approximately 80% of African-American rural landowners did not have an estate plan.
3. Tax Sale.
A tax sale is the public sale of property to recoup the amount of unpaid taxes on land. One of the challenges of owning heir property is that you may not know who is paying the taxes, or if the property taxes are delinquent. Therefore, keeping track of who pays the taxes, and whether they are current are important.
4. Partition Sale.
Partition sales are a common way African-American landowners have lost, and continue to lose, their land. A partition sale is a court-ordered sale of land. With a partition sale, the highest bidder becomes the owner. The proceeds from the sale are then distributed among all the co-owners of the property according to the size of their fractional interest. The proceeds, however, are not distributed to the heirs until after the cost of conducting the sale, attorney fees, and any other sale-related expenses are deducted. While a partition sale is the less cumbersome means to clear the problem of multiple ownership, there are several disadvantages to partition sales because:
It is often difficult for heir property owners to outbid land speculators and developers who may bid at the sale. An interest holder in heir property does not need to obtain the consent of the other heirs before seeking the partition sale of the family land.
5. Voluntary Sales.
The frequency of land sales between African-Americans is low. The 1980 Emergency Land Fund study found that when African-Americans sell their land to someone outside their family, they tend to sell it to non-minorities (ELF, 1984). Of the heir property surveyed, 21% were sold to African-Americans outside the family, and 30% were sold to Whites (ELF, 1984), and 38% were sold to family members. These statistics have remained fairly constant. Currently, there is no definitive explanation for why voluntary land sales to those outside the African-American community occur, however, the Emergency Land Fund’s 1980 study cited “economic stress; need to prevent foreclosures; family pressure; and, external pressures” as some of the reasons for this occurrence (ELF, 1984).
6. Other Contributors to Land Loss.
In December 2001, the Associated Press released a series of articles entitled “Torn From the Land” which documents the history of African-American land loss in the South. These articles chronicle the violence, exploitation and injustice African-Americans in the South endured in an effort to become and remain landowners. Investigators for this series interviewed more than 1,000 people and examined public records. Their research found 107 documented land takings in 13 Southern and border states. Their findings were extraordinary. From the 107 documented cases, more than 24,000 acres of farm and timberland were taken, including smaller properties like stores and city lots. Further, over half of the documented cases were violent land takings (57), and the others involved trickery and legal exploitation. From the senseless murders of African-American landowners, to the public sale of family land, African-American land ownership has rapidly declined in the 20th century, and continues to steadily decline in the 21st century.
7. Inaccessibility to Legal Counsel.
The need for attorneys to assist heir property owners, particularly those who wish to maintain ownership, is critical to curbing the crisis of African-American land loss in the United States. There are organizations that have existed for some time that are doing their part in meeting this need. The Federation of Southern Cooperatives has a summer legal externship program designed to expose law students to the issue of land loss. The Land Tenure Center’s Summer Legal Externship Program provides an opportunity for law students to learn about the struggle to retain land in African-American, Hispanic, and Native American communities. Other organizations, like the Land Loss Prevention Project, host law students each summer.
“1999 Agricultural Economics and Land Ownership,” National Agricultural Statistics Service (NASS), .\
Emergency Land Fund. “The Impact of Heir Property on Black Rural Land Tenure in the Southeastern Region of the United States.” Submitted by The Emergency Land Fund, Inc./ submitted to The United States Department of Agriculture/Farmers Home Administration (1984).
Gilbert, J., Gwen Sharp, and M. Sindy Felin. The Decline (and Revival?) of Black Farmers and Rural Landowners: A Review of the Research Literature, May 2001.
Gilbert, J., S.D. Wood, and G. Sharp, “Who Owns the Land?: Agricultural Land Ownership by Race/Ethnicity,” Rural America, vol. 17, issue 4, (Winter 2002) 56-62.
Pennick, Edward J. 1998. African American Land Loss: An Historical Overview and Analysis of Prevention Strategies. Paper presented at the “Who Owns America Assistance Fund, 1998.
Emergency Land Fund. The Impact of Heir Property on Black Rural Land Tenure in the Southeastern Region of the United States, 1980.
Mandle, J.R. Not Slave, Not Free: The African-American Economic Experience since the Civil War, Duke University Press, 1992.
National Agricultural Statistics Service (NASS). 1999 Agricultural Economics and Land Ownership Survey. .
U.S. Agriculture Census, 1997 .