Seminar Report: Heirs Property CLE At ABA Annual Meeting - A Slightly Different Perspective On Property Rights

The speakers (L to R): Kieran Marion, Professor Thomas Mitchell,
David Dietrich, Professor Steven Eagle, and Carolyn Gaines-Varner, 

"Property rights" are sometimes portrayed as belonging only to the rich and powerful, and protecting the politically connected. But a more realistic view was presented by the panel of speakers at a CLE presentation produced by the State & Local Government Law Section at the ABA Annual Meeting in Toronto.

Protecting Heirs Property: Uniform Laws and Social Justice detailed the new Uniform Partition of Heirs Property Act, a model statute addressing the problem of fractional land ownership by extended families. Here's a summary of the issue from the ABA Journal:

Heirs’ property results in descendants who inherit real property as tenants in common, with each owner having an undivided interest in the land. For the descendants, heirs’ property also creates a problem—anyone who inherits or buys an interest in the land, no matter how small, can file with a court to force other owners to sell.

Some practitioners and scholars are concerned that poor and middle-income people, and particularly Afri­can-Americans, are being forced off their land through partition sales. During these sales proceedings, the heirs who want the land often don’t have the means to purchase it, so the property can go to outside bidders, such as developers. As a result, land owned by families for generations is suddenly lost.

The program was moderated by George Mason lawprof (and regulatory takings guru) Steven Eagle, and includeed four expert speakers on the subject: Kieran Marion, the Legislative Counsel at the Uniform Law Commission; David Dietrich, an attorney with Dietrich & Associates in Billings, MT, and co-chair of the ABA Section of Real Property, Probate and Trust Law's Property Preservation Task Force; Carolyn Gaines-Varner, the Economic Justice Advocacy Director of Legal Services of Alabama; and Professor Thomas Mitchell of the University of Wisconsin Law School.

The session was a reminder that "property rights" can be the foundation for all other civil rights. As Professor Mitchell wrote:

[M]inority landownership can promote dynamic community life and facilitate greated democratic participation for groups historically at the margins of American political life. ... In these communities, those who acquired land participated in the political and civic lives of the wider society at a higher rate than those similarly situated who did not own land.

Thomas Mitchell, From Reconstruction to Deconstruction: Undermining Black Landownership, Political Independence, and Community Through Partition Sales of Tenancies in Common, 95 Nw. L. Rev. 505, 509 (2001). 

 Kieran Marion, David Dietrich, Carolyn Gaines-Varner,
Steven Eagle, Thomas Mitchell.