In Remedying Injustices for Black Land Loss: Taking the Next Step to Protect Heirs’ Property, Professor Phyllis Taite offers an original and effective solution to the problem of fractionation of Black-owned land, a problem that has caused drastic Black land loss and that many scholars and legislators have tried to solve. Taite proposes a novel use of trusts to prevent ownership of heirs’ property from fractionating, unlike other remedies that retroactively seek to unwind the harmful consequences of fractionation after the damage has been done. It’s an original and promising proposal.
Heirs’ property is land that has passed through multiple generations without going through probate: fractionation occurs because each generation of heirs acquires the land as tenants in common, the default tenancy for property. As more and more owners divide the land into smaller and smaller shares at each generation, ownership of the property fractionates. Taite points out how this process leads to multiple problems, including unclear title, disagreements about disposition, and land loss through forced partition sales.
Taite begins by summarizing the history and harms of Black land loss, often through government “complicity and complacency.” (P. 304.) She reminds us that by using the coercion of eminent domain to target alleged blight for the “public welfare,” municipalities in fact destroyed Black neighborhoods. (P. 307.) She describes how restrictive covenants gave way to redlining for the insidious purpose of excluding Black homeowners from desirable neighborhoods. Despite the Fair Housing Act, which makes these practices illegal, Taite points out that “barriers to Black land and home ownership are directly related to the past illegal practices of racially restrictive covenants, redlining, and blockbusting. (P. 310.)
As Taite notes, other scholars (including the author of this review) have sought to address this problem. Most well-known is probably the Uniform Partition of Heirs Property Act, drafted by Professor Thomas Mitchell, now adopted in twenty-one states. The Act addresses the problem after-the-fact by facilitating the purchase of shares by heirs who object to a partition sale.
In contrast, what Taite proposes is a way to prevent fractionation in the first place. Her solution is a statutory Family Land Trust, which would operate as follows: upon the death of an intestate title holder, one of the heirs would file a notice of death with the probate court and the property would default to the Family Land Trust. The heirs would then choose a trustee, or trustees – or a court could appoint one – and the trustee would manage the property, creating an account for any income produced by the property, and notifying the beneficiaries of necessary expenses, among other duties. Any beneficiary who fails to respond or contribute a pro rata share of expenses for five years would be deemed to have his or her share adversely possessed by the trustee. Beneficiaries would also be able to sell their shares to other beneficiaries or the trustee.
Taite adds a tax exemption component for family property that suffered from eminent domain, blight, redlining, and blockbusting – all the practices that have led to land loss and impeded wealth building for generations of Black families. As an analogy, Taite points to the California legislature’s decision to include tax relief when it voted to return Bruce’s Beach to the descendants of its original Black owners.
Taite astutely steers clear of the constitutional constraints that led the Supreme Court to strike down the Indian Land Consolidation Act (ILCA) in Hodel v. Irving. Because the ILCA mandates that fractional shares below a certain amount must escheat to the tribe, the Court ruled that the Act constituted a taking under the Fifth Amendment. Taite points out that her proposal avoids a similar defect because it does not take anyone’s property: the beneficiaries of the trust have the choice to keep their shares or sell them. The Family Land Trust approach, Taite notes, “balances individual ownership interest against the collective ownership model and supports limitations on some ownership privileges for the greater family benefit.” (P. 323.)
This proposal offers a brilliant solution to an intractable and longstanding problem. Unlike other proposals, Taite’s idea would prevent real property from going into heirs’ property status before it happens by consolidating the land under unified ownership upon the titleholder’s death. My only question is whether an heir should be required to register the death certificate to invoke the Family Land Trust. Land often falls into heirs’ property status because heirs fail to probate the decedent’s estate. Would heirs be any more likely to register the death under the Family Land Trust proposal? Perhaps this question serves as a reminder that the legal community has a history of underserving racial and ethnic minority communities—a history that itself needs to be remedied.
It’s a pleasure to see the trust, famously championed as the greatest invention of the common law, deployed to remedy historical injustice with regard to property ownership. Trusts have consistently been used throughout history for wealth accumulation by those who are already wealthy, but Taite’s article shows their usefulness in preserving wealth for economically disadvantaged groups. In particular, the statutory trust seems under-utilized in this regard: as Taite shows, it can target specific injuries and redress historical dispossession without depriving a decedent’s surviving family of the benefits of inherited property. Let’s hope that Taite’s proposal is implemented and that it inspires other reforms in the same vein.
