Acres of Distrust: Heirs Property, the Law’s Role in Sowing Suspicion Among Americans and How Lawyers Can Help Curb Black Land Loss

Georgetown Journal on Poverty Law and Policy

Volume XXVIII, Number 3, Spring 2021

377

Acres of Distrust: Heirs Property, the Law’s Role in

Sowing Suspicion Among Americans and How

Lawyers Can Help Curb Black Land Loss

Will Breland*

In the last century, Black landownership has declined by roughly 90 percent.

One agricultural attorney remarked of the phenomenon, “I think the threat to

Black-owned land is one of the biggest social issues of our time.” The passing

observer might hypothesize that the hemorrhaging of Black lands occurred in the

distant past because of Jim Crow laws or the Great Migration. However, this

notion is mostly false. Rather, the tremendous loss of Black lands occurred in the

latter half of the twentieth century and into the current decade. Many such losses

can be attributed to the prevalence of “heirs property,” or property defined by the

existence of a tenancy-in-common form of ownership as a result of intestacy, and

speculators, developers, and legal professionals’ exploitation of such landowners’

tenuous form of ownership through partition sales. Heirs property ownership is

particularly widespread in the rural South and in predominately African American

communities.

It is the position of this Article that such exploitation has caused many,

particularly in the African American community, to view legal professionals with

distrust, particularly regarding property matters. In order to illustrate the

connection between Black landownership and its past interactions with the legal

system, this Article outlines the social and legal history of Black landownership.

While scholars debate the impact of mistrust in the legal system and its

practitioners on estate planning, this Article contends that past negative

interactions with the legal system inhibit the utilization of estate planning services.

As a result, this perpetuates a cycle of inheritance through intestacy on a massive

scale. Finally, this Article provides proposed solutions for legal professionals to

consider when dealing with such legal issues. In particular, courts must adhere to

the majority of states’ preferences for partitions in kind rather than demonstrating

an over-eagerness in ordering partition sales. As such, courts should consider

intangible property values when making partition determinations, rather than

exclusively considering economic values. In order to accomplish this, the

*William (Will) B reland graduated from the University of Alabama School of Law in 2020 with a

Certificate in Public Interest Law. Will is currently serving as a 2020-2021 Borchard Fellow for the

Borchard Foundation’s Center on Law & Aging. As a part of his fellowship, Will serves as a staff attorney

at Legal Services Alabama. In his role, Will provides legal services to older adults with heirship property

issues in Alabama’s historic Black Belt. Prior to law school, Will graduated from Birmingham-Southern

College with a Distinction in Leadership Studies. © 2021, Will Breland.

378 The Georgetown Journal on Poverty Law & Policy [Vol. XXVIII

development of culturally competent attorneys and judges is paramount.

Therefore, this Article argues that law schools and continuing legal education

programs must emphasize cultural competence.

I. INTRODUCTION ............................................................................................... 378

II. “THE WORST PROBLEM YOU’VE NEVER HEARD OF” ................................... 388

III. A DUAL HISTORY: BLACK LANDOWNERSHIP AND THE LAW ...................... 390

IV. NEGATIVE EXPERIENCES WITH THE LEGAL SYSTEM MAY LEAD TO

HESITANCY IN ESTATE PLANNING ..................................................................... 401

V. PROPOSED SOLUTIONS .................................................................................. 403

A. Cultural Competency Within the Legal Profession ................................... 403

B. Courts Must Seek More Equitable Outcomes Despite Their

Economic Ramifications ................................................................................ 407

VI. CONCLUSION ................................................................................................ 408

I. INTRODUCTION

Melvin Davis worked as a shrimper in the water adjoining his family’s land in

Carteret County, North Carolina.1 He also operated a club on the property.2 His

brother, Licurtis Reels, spent years building a house on the land nearby to his

mother. 3 Purchased by their grandfather a mere “generation removed from

slavery,” the family owned the land for a hundred years.4 The land held special

1. This Article makes liberal use of narrative. Using storytelling within legal scholarship has been

debated, with some scholars arguing that its employment is merely a “fringe fad of ephemeral duration.”

Arthur Austin, Evaluating Stories as a Type of Nontraditional Scholarship, 74 NEB. L. REV. 479, 516

(1995). Other scholars argue that by employing narrative in legal articles, authors discourage dissention,

lack in normative legal substance, call into question the “reliability” of accounts, and throw doubt on the

“typicality” of an experience. See Kathryn Abrams, Hearing the Call of Stories, 79 U. C. L. REV. 971, 977-

980 (1991) (describing the “four ‘families’ of objections” to narrative in legal scholarship.). On the other

hand, one author posited that legal scholarship void of narrative were “bloodless discussions of law” and

“undermine[d] effective communication.” Richard A. Matasar, Storytelling and Legal Scholarship, 68 CHI

– KENT L. REV. 353 (1992). Within the context of legal reform advocacy, another author stated that

storytelling can “persuade legal decision-makers to act in a particular way by ‘creat[ing] and bridge across

gaps in experience and thereby elicit empathic understanding.’” See Jane C. Murphy, Lawyering for Social

Change: The Power of the Narrative in Domestic Violence Law Reform, 21 HOFSTRA L. REV. 1243 (1993)

(quoting Martha Minow, Words and the Door to the Land of Change: Law Language, and Family Violence,

43 VAND. L. REV.1665, 1688 (1990).). For example, advocates for domestic violence law reform shared

stories from victims in a successful effort in “reversing Maryland’s historical pattern of denial and silence

in the face of widespread family violence.” Id. This author agrees with the latter stance.

2. Lizzie Presser, Their Family Bought Land One Generation After Slavery. The Reels Brothers Spent

Eight Years in Jail for Refusing to Leave It., PROPUBLICA (July 15, 2019),

https://features.propublica.org/black-land-loss/heirs-property-rights-why-black-families-lose-land-south/.

3. See id.

4. See id.

N

o. 2] Acres of Distrust 37

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significance for the local Black5 community.6 Tent revivals were held, crops and

livestock were farmed, and the shores of its waters served as the only beach in their

North Carolina county to allow Black families during the waning years of the Jim

Crow era.7 In the late 1970s, a distant relative of Mr. Davis and Mr. Reels acquired

ownership of the most valuable portion of the land using the doctrine of adverse

possession8 and an obscure and controversial law called the Torrens Act.9 Under

North Carolina law, an adverse possessor can claim ownership of a land parcel

when one physically “possesse[s] the property under known and visible lines and

boundaries adversely to all other persons for 20 years; and such possession so held

gives a title in fee to the possessor, in such property, against all persons not under

disability.” In this case, the Torrens Act allowed a court-appointed lawyer to grant

5 . T his Article uses the words “Black” and “African American,” but does not use them

interchangeably. Save for instances where the Article quotes another source, the term “Black” is used as

an adjective when describing ownership of land, race, historical events, etc., and the term “African

American” is employed as a noun when identifying a person, a group, or the like. Although the Article uses

the term “African American” it does not seek to overlook the many varied experiences of those who

consider themselves “Black” but do not identify their cultural backgrounds as being linked to the African

diaspora such as those whose lineage originated in “Caribbean islands, Latin America, . . . or elsewhere.”

See Racial and Ethnic Identity, APA STYLE, https://apastyle.apa.org/style-grammar-guidelines/bias-free-

language/racial-ethnic-minorities (last visited May 28, 2021). The word “Black” is capitalized in

contravention to some style guides. See Mike Laws, Why We Capitalize ‘Black’ (and not ‘white’),

COLUMBIA JOURNALISM REV. (June 16, 2020), https://www.cjr.org/analysis/capital-b-black-

styleguide.php (“Though Chicago still generally mandates lowercasing both black and white, it does

include the proviso that the rule can be suspended if ‘a particular author or publisher prefers otherwise.’”);

See also Explaining AP Style on Black and white, ASSOCIATED PRESS (July 20, 2020),

https://apnews.com/article/9105661462#:~:text=AP's%20style%20is%20now%20to,African%20diaspora

%20and%20within%20Africa. The author agrees with the assertion that the term “Black” should be

capitalized as it represents not simply a description of skin color but also reflects a shared culture and

experience. Kwame Anthony Appiah, The Case for Capitalizing the B in Black, ATLANTIC (June 18,

2020), https://www.theatlantic.com/ideas/archive/2020/06/time-to-capitalize-blackand-white/613159/

(“Black with a capital ‘B’ refers to a group of people whose ancestors were born in Africa, were brought

to the United States against their will, spilled their blood, sweat and tears to build this nation into a world

power and along the way managed to create glorious works of art, passionate music, scientific discoveries,

a marvelous cuisine, and untold literary masterpieces. When a copyeditor deletes the capital ‘B,’ they are

in effect deleting the history and contributions of my people.”). This Article does not capitalize “white.”

The New York Times guidance on style best describes this decision in stating, “white doesn’t represent a

shared culture and history in the way Black does, and also has long been capitalized by hate groups.” Nancy

Coleman, Why We are Capitalizing Black, N.Y. TIMES (July 5, 2020),

https://www.nytimes.com/2020/07/05/insider/capitalized-black.html.

6. Brothers Jailed for Eight Years for Refusing to Leave Their Land, EQUAL JUST. INITIATIVE,

https://eji.org/news/brothers-jailed-8-years-for-refusing-to-leave-their-land/ (last visited Nov. 24, 2020).

7. See id.

8. See id. Under North Carolina law, an adverse possessor can claim ownership of a land parcel when

one “has possessed the property under known and visible lines and boundaries adversely to all other persons

for 20 years; and such possession so held gives a title in fee to the possessor, in such property, against all

persons not under disability.” N.C. Gen. Stat. § 1-40 (2019).

9. See Equal Just. Initiative, supra note 6. According to Lizzie Presser’s account of the distant relative,

the Torrens Act allowed him to “simply prove adverse possession to a lawyer, whom the court appointed,

and whom he paid.” Presser, supra note 2. She continued, “The Torrens Act has long had a bad reputation,

especially in Carteret. ‘It’s a legal way to steal land,’ Theodore Barnes, a land broker there, told me. The

law was intended to help clear up muddled titles, but, in 1932, a law professor at the University of North

Carolina found that it had been co-opted by big business.” Id.