Faith Rivers James, an associate professor at Elon Law, delivered a presentation at the South Carolina Black Lawyers Association Continuing Legal Education Conference on October 2, detailing injustices in court actions involving individuals who had inherited property purchased by former slaves during the Reconstruction period.
In her presentation, Rivers James presented recommendations from her research on heirs’ property. She has published two law review articles on the topic: “Inequity in Equity: The Tragedy of Tenancy in Common for Heirs’ Property Owners Facing Partition in Equity,” published in the Temple Political & Civil Rights Law Review, 2007-2008, and “The Public Trust Debate: Preserving Heirs’ Property Along the Gullah Coast,” published in the fall 2006 edition of the Southeastern Environmental Law Journal.
Tracing the historical roots of South Carolina’s partition process back to equity courts’ practice of partitioning of slaves as personal property, Rivers James noted the irony that the current equity court partition actions do further injustice to heirs’ property owners, many of whom inherited property purchased by former slaves during the Reconstruction period.
Rivers James reviewed case law acknowledging sentimental attachment to land, as well as 2009 developments in the South Carolina Court of Appeals regarding tenants in common which hold promise for consideration of sentimental value.
In order to combat the distorted economics in partition sales, Rivers James suggested that equity courts look to tax policies which recognize the difficulties of shared ownership in real property and provide discounts to cotenant valuations.
“This discount should be taken into account when equity courts consider the pecuniary interests of cotenants, along with the sentimental value and personal connection and investment in the property,” Rivers James said. “The discount would be in order when assessing the value in actions to partition in kind or by allotment, or when non-petitioning heirs exercise South Carolina’s statutory right of refusal to purchase the property.”
“In addition, courts should recognize the real estate development functions in partition actions and reform the procedural time limits for adequate marketing and appraisal in line with real estate development timeframes,” Rivers James continued. “Too often, heirs’ property owners are denied the requisite time and effective opportunity to attain the full and true value of their land. As a result, generational wealth has been transferred away from African American families to developers.”