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12 Clearinghouse Rev. 273 (1978-1979)
Heirs Property: The Problems and Possible Solutions

handle is hein.journals/clear12 and id is 287 raw text is: HEIRS PROPERTY: THE PROBLEMS AND POSSIBLE SOLUTIONS by C. Scott Graber* I. INTRODUCTION A part of America's Promise is the opportunity to own land. The opportunity to buy and build, and to enjoy the security that ownership brings. But for some people this promise comes with problems, legal problems that often make ownership meaningless. It is estimated that one-third of all land held by blacks - blacks living in the rural South - cannot be bought, sold or traded away. The same land cannot be used as collateral for housing or for agriculture. This property, commonly called heirs property, is held at greatly diminished value. To illustrate how much of this has happened we shall look at a hypothetical black family named Boles and recount its long relationship with the land. In 1865, John Boles, a slave, bought ten acres of land in Beaufort County, South Carolina from his former master. As soon as Boles got title (from the Freedman's Bureau) he planted cotton, okra and collards; he also raised a family. When Boles died in 1915 he left three boys: John Jr., James and Hezekiah. Boles died intestate. In Beaufort County, and in the rural South, wills were rare. When a man died his land usually passed, by statute, to his wife and children. When the wife and children died, the land passed to the grandchildren. Two or three generations later, a hundred people could be involved in the ownership of ten acres. In our hypothetical case, Hezekiah Boles left for New York and a new life in 1880. James left five years later. John Jr., the oldest of the three, stayed in Beaufort County farming the land like his father before him. But staying on the land was The author practices law in Beaufort, South Carolina. This article was prepared pursuant to a Fellowship with the Re- search Institute on Legal Assistance of the Legal Services Corporation. The views expressed are those of the author and do not represent those of the Research Institute or the Legal Services Corporation. SEPTEMBER 1978 not easy. The weather was erratic. There were alternate periods of either too little or too much rain. In 1919, the boll weevil put an end to cotton farming in Beaufort County. The depression was hard on John and his family, as it was throughout the South generally. But John kept his farm, and during World War II he worked part-time at a nearby military base. In 1950, he turned the farm over to his oldest son, Frank, and Frank has been on the land for the last 25 years. Frank lives in the same frame house that his grandfather built in 1865. The house is a little larger than it was when John lived there, but it's basically the same damp, dark and windy cottage that John assembled after the Civil War. Rachel Boles, Frank's wife, is weary of their home and has insisted for several years that the house be rebuilt or abandoned. The Farmers Home Administration (FmHA) was established to assist rural people (with marginal resources) in moving out of shacks and into modest homes. Believing that the FmHA would help him build a new house, Frank went to the county supervisor and was told that he would need clear title. A lawyer who would quiet title told Frank that he would need quitclaim deeds from all the heirs and from any other person having an interest in the ten acres. Frank got -quitclaim deeds from his own brothers and eventually got deeds from Hezekiah's three children (all living in Stamford, Connecticut), but he never knew his Uncle James or heard if James was married or had children, and in spite of his best efforts, he could not find James or any of James' children. When Frank went back to the FmHA and explained his problem, the FmHA supervisor told Frank that this missing interest was considered a cloud on the title and would mean there could be no title certificate or title insurance. He suggested purchase of a mobile home. Although mobile homes are an acceptable alternative for many people (in many instances, the only alternative), Frank wants something permanent. Unfortunately, he will find that there is nothing available at the Farmers Home Administration. He will discover that the missing interest will discourage every bank and every lender. He will find that both bankers and bureaucrats will urge him into a mobile home because financing of these homes does not require a

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