COLUMBIA, S.C. - South Carolina lawmakers are reviewing stronger protections for land with no clear title that has often been handed down by blacks for generations since slavery.
Heirs' property is any land passed down without a will. In South Carolina it most often refers to land in the Lowcountry handed down by former slaves that eventually ended up being owned jointly by dozens of descendants.
Because there is no clear title, any heir can go to a judge seeking their share of the property and under current law the only way to get that value is to auction the land. Third parties sometimes purchase an heirs' interest and force the auction and in some cases, developers have bought tracts at auction at well-below market price.
Land owned by blacks is often vulnerable because they have been less likely to file wills. And as blacks migrated to other states over the years, many lost ties to the land and the family they left behind and were willing to collect money for their share of a tract they had never seen.
A decade ago, South Carolina lawmakers passed a bill giving relatives the right of first refusal if someone wants to get their value from the land. The land is appraised and they are given 45 days to pay fair market value.
But with ever-increasing coastal land values "the big issue with that is that the heirs often have the inability to get the money together to pay," said Susan Berkowitz, director of the South Carolina Appleseed Legal Justice Center,
Now lawmakers are considering the Uniform Partition of Heirs Property Act which went before a Senate subcommittee last week.
It maintains the right of first-refusal so other family members can purchase the property but also allows, for the first time, judge to consider more than just economics in deciding how everyone gets their value out of the property.
A judge could consider such things as whether the land can be divided, the degree to which the descendants have contributed to property taxes and other costs of keeping the land, and even someone's sentimental attachment to the land such as it being where their ancestors lived.
In addition, if a settlement can't be reached, the judge can require it be sold, not at auction, but on the open market where all the descendants will receive a fair-market price.
"There would be a requirement that the court weigh to totality of all the relevant factors, not just the economic issues," said Josh Walden, the attorney for the Charleston-based Center for Heirs Property Preservation, a nonprofit that works to help heirs' property owners obtain clear title and keep their family land.
There's an estimated 41,000 acres of heirs' property in the six South Carolina counties that the center serves.
Walden said considering factors beyond economic value will give the judges and attorneys more leeway "and probably more headaches to be honest."
It will allow "arguments to be made in certain cases that even if they don't prevent the entire sale of the property, maybe they can allow a partition of a portion of it. Maybe it's not an all-or-nothing thing," he said.
Berkowitz said the bill will make heirs' property issues a part of South Carolina law.
"There is nothing in the law now that recognizes heirs' property and the unique nature of it. Unfortunately a lot of property has been lost. But better late than never," she said.
State Sen. Senator Gerald Malloy, D-Hartsville, said during the subcommittee hearing that "it's just unfortunate we didn't have this years and years and years ago."
He added that "there are a lot of pieces of legislation that would have been a good idea some time ago. But someone has to bring it up, somebody has to put it in action and somebody has to work on it. Hopefully we will make this into law."