South Carolina Lawyer
SC Lawyer, July 2006, #2.
Time to Move Forward on Heirs' Property
South Carolina LawyerJuly 2006Time to Move Forward on Heirs' PropertyThe small landholders are the most precious part of a state. -Thomas Jefferson, Letter to James Madison (October 28, 1785)
By J. Blanding Holman IV I. Background
Through the years, the problem of "heirs' property" in South Carolina-land purchased by former slaves, passed intestate through generations and now held by relatives as tenants in common-has received a good deal of attention in legal circles, starting with a South Carolina Law Review note published more than 30 years ago. Hugo A. Pearce III, Note, "Heirs' Property": The Problem, Pitfalls, and Possible Solutions, 25 S.C. L. REV. 151 (1973). As recognized there, heirs' property is problematic for those family members seeking to retain ownership, since a third-party purchaser of even a very small share of the property can force the sale of it all, irrespective of what of any family members who may be living on the land may wish.
In the intervening three decades since that article, some things have changed to the benefit of heirs' property owners. Awareness of the problem, for example, has greatly increased. Further, families facing heirs' property situations have received many hours of help from members of the South Carolina Bar, often pro bono. Most significantly, substantial support from the Ford Foundation, Coastal Community Foundation of South Carolina, the S.C. Bar Foundation and individual donors led to efforts culminating in creation of the Center for Heirs' Property Preservation in Charleston, a public interest organization that provides education and direct legal assistance to families grappling with heirs' property problems.
But alongside those developments have come demographic changes that are greatly increasing the pressure on heirs' property. Over the past 20 years, South Carolina's coastal population increased by a third, and over the 20 twenty, the state will gain one million residents. See Urban Land Institute and the University of South Carolina's Real Estate Center, "Growing by Choice or Chance" (2004). Such population growth has combined with significant investor speculation to send property values along the coast spiking upwards, and not just along the beach. These days the beachfront is largely built-out. The game has turned inland, where a marsh view in a gated "plantation" development can fetch a premium price unimaginable 20 years ago.
This region of the state, the lowcountry, is where heirs' property owned by African-Americans is most concentrated, for a number of related historical reasons. Charleston was the gateway for 40 percent of all slaves legally admitted into the United States-a class of persons that was prohibited from owning property until January 16, 1865, when General Sherman's Field Order No. 15 declared the Sea Islands stretching from Savannah, Georgia to Charleston "abandoned land" and thereby opened the way for settlement of 40,000 freedmen on 40-acre plots. Mitchell, T., From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence and Community Through Partition Sales of Tenancies in Common, 95 Nw. U.L. Rev. 505, 525 (2001). The Bureau of Refugees, Freedmen and Abandoned Lands (Freedmen's Bureau") soon followed, promising "every male citizen, whether refugee or freedman, forty acres of land at rental for three years with an option to buy." Id.
As things turned out, the bulk of emancipated slaves expecting "forty acres and a mule" were gravely disappointed. By mid-1866, half of the 850,000 acres of land controlled by the Freedmen's Bureau was returned to former white owners, while almost 80 percent of the...