West Virginia University College of Law professor Jesse Richardson recently published new scholarship in volume 28 of the Drake Journal of Agricultural Law. The article is titled "Solutions for Heirs Property Owners" and was originally presented at the 43rd Annual AALA Agriculatural Law Educational Symposium on November 11, 2022. Professor Richardson's co-author is Amber Miller of Crenshaw, Dupree & Milam, LLP.
From the abstract:
What are some solutions for heirs property owners? An offered solution assumes that there is a problem, and the first step must be clearly defining the problem. But, as the authors explain, the term "heirs property" proves difficult to define because of the vast number and scope of heirs property scenarios. Stated very simply, the term refers to a subset of tenancy in common property where the owners received concurrent interests in land through inheritance. But, heirs property is anything but simple. In fact, it is quite complex, beginning with the ownership picture of heirs property tracts of land: the owners are typically related and may number in the dozens, hundreds, or thousands.
The core issues arising from heirs property relate to the legal form of ownership - tenancy in common. Tenancy in common ownership is defined by certain key characteristics that have likely contributed to the complexity of how best to resolve heirs property, particularly in agriculture. Therefore, this article begins by explaining heirs property, and the overarching form of ownership, tenancy in common.
The authors then identify and discuss two major areas of concern with respect to heirs property generally, and more specifically with respect to heirs property that is utilized in production agriculture. First, the economic (or efficiency) concern refers to the fact that the cotenants cannot put the property to its maximum economic use. Second, the vulnerability (or displacement) concern arises where one cotenant fears loss of their fractional interest due to the unilateral actions of another cotenant.
The article goes on to explore potential solutions for heirs property, and particularly those heirs properties that are used in agriculture, including 2018 Farm Bill provisions that attempt to alleviate some of the economic impact of heirs property on farm operators, as well as other policy innovations and draft uniform laws that seek to address heirs property and the impacts of partition on heirs property used in agriculture.
The Article concludes by making recommendations to agricultural attorneys on addressing both the prevention and resolution of heirs property and making policy recommendations. Along the way, the authors uncover a neglected barrier to resolution of heirs property issues- the lack of sufficient state legislation addressing the clearing of title for heirs property. The authors conclude that heirs property constitutes an urgent problem in the United States, because many acres of farmland lie idle due to the effects of heirs property. There is a need for a sense of urgency in order to address the heirs property conundrum and potentially unlock huge amounts of economic development presently trapped in heirs property.
Find more of Professor Richardson's scholarship on SSRN and his SelectedWorks scholarship profile.